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2024 DIGILAW 176 (ALL)

Saleem v. State of U. P.

2024-01-17

ARVIND SINGH SANGWAN, SHIV SHANKER PRASAD

body2024
JUDGMENT : Arvind Singh Sangwan, J. 1. Heard Sri Ajay Kumar Pandey, learned counsel for the appellant and learned AGA for the State. 2. This appeal is preferred against the judgment of conviction and order of sentence dated 04.06.2019 passed by the learned Additional District & Sessions Judge/ Fast Track Court No. 1, Hapur in Sessions Trial No. 145 of 2017 (State of U.P. vs. Saleem and another), arising out of Case Crime No. 498 of 2016, Police Station-Garh Mukhteshwar, District-Hapur whereby the appellant was held guilty of offence punishable under Section 302 and 201 of IPC and was sentenced to undergo life imprisonment under Section 302 with a fine of Rs.5,000/- and in default of non-deposit of fine to further undergo simple imprisonment of one year and further three years simple imprisonment under Section 201 IPC along with a fine of Rs.2,000/-, in default of payment of fine to further undergo simple imprisonment of six months. 3. The co-accused of the appellant Smt. Sanjoo was acquitted of the charge. The case as set up by the prosecution, based on the statement of informant- P.W.-1 Seoraj Singh is that he had a son namely Kuldeep (since deceased) who was married with Sanjoo daughter of Vijay Pal in the year 2002. Out of this wedlock, four children were born. Appellant Saleem is resident of Narangpur and used to visit the house of his son. Saleem had developed illicit relationship with Smt. Sanjoo. The informant and his son Kuldeep used to protest in this regard. On 21/22.11.2016, Kuldeep and his wife Sanjoo had exchanged hot words and even had a scuffle with each other. On 25.11.2016, at about 11 AM Kuldeep told the informant that his wife is not mending her ways and therefore, he is going to police station to lodge complaint. On this, Smt. Sanjo and appellant Saleem felt sorry and promised that nothing of such type will happen in future. On next date, i.e. 26.11.2016 at about 2.00 PM, when informant and one Tilakram, Municipal Councillor, who is also resident of the vicinity of appellant were standing near Ambedkar Gate, he saw that his son Kuldeep was going along with appellant Saleem. Informant asked him where he is going along with Saleem, upon this his son told him that they are going for some important work and he will return by the evening. Informant asked him where he is going along with Saleem, upon this his son told him that they are going for some important work and he will return by the evening. When his son did not return in the evening, he visited house of his daughter-in-law Sanjoo and asked about the whereabouts of Kuldeep. Sanjoo said that he will return back, but thereafter, son of the informant did not return back. He along with other family members started searching for him. When he along with his family members put pressure on Sanjoo, she informed that she is going to police station for lodging a missing report of Kuldeep. In the meantime, informant was searching his son Kuldeep. Thereafter, he came to know through a newspaper that in the intervening night of 26/27.11.2016 body of an unknown man was found by the police on the back side of Rahi Hotel along with the railway line. In this regard, the police of police station Brij Ghat had initiated the proceedings. Informant along with his other son Vijay Pal, Tilakram (Municipal Councillor) and son-in-law Ajeet and some other family members and resident of his area went to Police Station-Brij Ghat. The police informed that a dead body was found on the intervening night of 26/27.11.2016 near the railway line. They opened a parcel and asked them to identify the clothes upon which they identified that these were the clothes of his son Kuldeep. They were also shown the photographs of the deceased and some pamphlets. They had every reason to believe that the deceased was his son Kuldeep. The informant told the police that he has every reason to believe that murder of his son Kuldeep is committed by Saleem and his daughter-in-law Sanjoo and in order to mislead, his dead body was thrown near the railway line. On the basis of the aforesaid complaint, FIR under Section 302, 201, 120 B IPC was registered on 02.12.2016 and the same was entered in the general diary. Thereafter, the investigation was carried out and both Saleem and Sanjoo were arrested and charge-sheet was filed against them. The case was then committed to the court of Sessions where charges under Section 302, 201 IPC were framed against the appellant Saleem and charges under Section 302 read with Section 201 and 120 B were framed against Sanjoo. Both the accused denied the charges and claimed trial. The case was then committed to the court of Sessions where charges under Section 302, 201 IPC were framed against the appellant Saleem and charges under Section 302 read with Section 201 and 120 B were framed against Sanjoo. Both the accused denied the charges and claimed trial. 4. The prosecution examined eight witnesses. P.W.-1- informant Seoraj Singh deposed on the line of facts as per the FIR. He proved the complaint Ex. A4/3 on the basis of which FIR was registered as Ex.Ka-1. This witness also proved the recovery memo of the blood stained stones and earth which is Ex. Ka-2. In cross-examination, this witness stated that he is not an eye-witness. He further stated that Kuldeep and Sanjoo were residing separately for the last ten years. This witness, however, stated that he used to visit the house of Sanjoo and Kuldeep, frequently and in further cross-examination, this witness stated that when he had gone to the police station for recording the FIR, he was accompanied by 15-20 persons and FIR was recorded after due consideration. 5. P.W.-2 Tilakram stated that on 26.11.2016, at about 2.00 p.m., he was standing with Seoraj Singh at Ambedkar Gate for purchasing some articles. In the meantime, Seoraj Singh saw his son Kuldeep and asked him where he is going along with Saleem. Upon this, Kuldeep stated that he is going for some urgent work and will come back by evening. P.W.-2 asked Seroaj Singh who is Saleem, then he informed that Saleem is a man from the side of in-laws of Kuldeep and visits Kuldeep's house. Seoraj Singh also informed that Saleem and his daughter-in-law are having illicit relationship, but they have felt sorry about the same. This witness stated that he has no knowledge whether Kuldeep had taken money from Saleem. Thereafter, Seoraj Singh met him one or two times and told that his son is not traceable. On reading a new item that unclaimed dead body was found near the railway line, many persons along with Seoraj Singh and his family went to Police Station-Brij Ghat where SHO had asked them to identify clothes and photographs. After identifying the same to be of Kuldeep, Seoraj Singh asked him to write a complaint. The complaint was written in his handwriting. 6. In cross-examination, this witness stated that he had no knowledge about the relationship between Sanjoo and Kuldeep. After identifying the same to be of Kuldeep, Seoraj Singh asked him to write a complaint. The complaint was written in his handwriting. 6. In cross-examination, this witness stated that he had no knowledge about the relationship between Sanjoo and Kuldeep. They used to reside in the rented house of one Sunil Kumar Rastogi and he used to visit the house of Sunil Kumar Rastogi. PW-1 told him that Saleem and Sanjoo have illicit relationship. This witness further stated that he has gone to Police Station along with 10-12 persons and after due consideration that the FIR is to be registered in a particular manner it was recorded. He went to police station on 02.12.2016. The script was dictated by Seoraj Singh and written by him thereafter it was signed by Seoraj. This witness pleaded ignorance about the manner in which murder of Kuldeep was committed. 7. PW-3 Ravindra is a witness of Panchayatnama of the dead body dated 27.11.2016. 8. PW-4-Dr. Praveen Kumar Gupta, conducted the post mortem of Kuldeep and has reported the following injuries : 1. Lacerated wound 13cm x 6cm x cavity deep on left side of skull obliquely placed just above left ear cavity empty underlying bone are fractured. 2. Lacerated wound on left side of skull posteriorly 8cm x 4.5 cm x cavity deep 4cm away from left ear underlying bones are fractured cavity is empty. 3. Lacerated wound 15cm x 7cm x bone deep on left forearm posteriorly just below elbow underlying bone fractured. 4. Lacerated wound 5cm x 3cm x muscle deep 9cm below injury no. 3. 5. Abrasion on right arm 3cm x 2cm laterally 6cm below right shoulder. 9. This witness further stated that during the internal investigation both parietal bones of skull towards left side were fractured, there was no brain tissue in the cavity and both the lungs were congested. The cause of death was due to coma on account of sustaining injuries within half of the day. 10. PW-5- Pravesh Kumar, Constable stated that he was posted in the Police Station-Garh Mukhteshwar, where upon receiving a complaint from Seoraj Singh against the accused person, the same was recorded on a computer and he had signed it. Thereafter, Samarjeet Singh, SHO had also signed and vide G.D. No. 22 dated 10:30 PM on 02.12.2016, which is A4/1 and was exhibited as Ka-5. The G.D. was exhibited as Ex-Ka6. Thereafter, Samarjeet Singh, SHO had also signed and vide G.D. No. 22 dated 10:30 PM on 02.12.2016, which is A4/1 and was exhibited as Ka-5. The G.D. was exhibited as Ex-Ka6. In cross-examination, this witness stated that name of the computer operator is not mentioned in the FIR. 11. PW-6- Rajendra Singh, Sub-Inspector, stated that he was posted as Sub-Inspector in Brij Ghat, Police Station-Garh Mukhteshwar and on receiving information about a dead body, at about 01:30 in night, he along with other co-officials went to the spot and with the help of a torch he inspected the dead body which was lying along the side of the railway line towards up down line. He has also broadly given the nature of injuries and as the dead body could not be identified by calling some persons, the Panchayatnama was prepared which was signed by five persons. The Panchayatnama is Ex-Ka-3. The photograph of the dead body is Ex-Ka-7 and the sample seal is Ex-Ka-8. In cross-examination, this witness stated that at the first instance it was opined that the deceased could have died by falling from the train as such type of accidents occur at the place of incident because there is a curve on the railway track. In the personal search of the deceased, nothing was recovered and as the deceased could not be identified the Panchayatnama was done and the blood stained stones and clothes were recovered. 12. PW-7- Harinandan Sharma, S.I. stated that he was posted in Police Station-Garh Mukhteshwar. On receiving the information regarding the FIR, on 10.12.2016 on direction of Samarjeet Singh, S.H.O. on pointing out of Saleem, he had recovered the bamboo stick and the green coloured slipper along with blood stained earth which was exhibited as Ka-9 and prepared the memo which is Ex-Ka-10. During cross-examination this witness stated that he did not arrest the accused person and on the asking of Saleem, the recovery was effected. 13. During cross-examination this witness stated that he did not arrest the accused person and on the asking of Saleem, the recovery was effected. 13. PW-8- Samarjeet Singh, Inspector, stated that he has verified the statement of witnesses and on 06.12.2016 the statements of witnesses, Vijay Pal Singh, Ajit Singh and Smt. Mayadin were recorded, thereafter, efforts were made to arrest the accused-Saleem on 10.12.2016 and thereafter along with the police force he was taken to the place of occurrence from where he got recovered one slipper of the deceased along with blood stains earth and one Danda was also recovered which was taken in possession vide recovery memo. Thereafter, he arrested co-accused, Sanjoo on 11.12.2016 and recorded confession statement of Saleem. This witness has also stated about recording of statement of the other witnesses including Dr. Praveen Gupta who conducted the post-mortem report. The report under Section 173 Cr.P.C. was submitted before the Ilaka Magistrate which is Ex-Ka-11. This witness stated that Saleem was arrested near the Central Bank, Athsaini. This witness also stated that Saleem was not there in the village and had gone to his native place in Agra and he was arrested on 10.12.2016. The report of the FSL was exhibited as Ka-12 and the report submitted before the Court as Ka-13. During his examination, the parcel made by the police was opened and the slipper of deceased was marked as Ex-2. 14. In cross-examination, this witness stated that he had visited the place of incident after 8-9 days of recovery of the dead body and at that time the Sub-Inspector who prepared the Panchayatnama was not along with him. The statement of the accused was recorded in police station and not at the spot. The witness stated that the blood stains which was found near the dead body, was not sent to the Fingerprint Expert. 15. In further cross-examination, this witness stated that during investigation, in the final report no evidence regarding the illicit relationship of Sanjoo and Saleem had come on record. 16. Thereafter, the trial court recorded the statement of both the accused under Section 313 of Cr.P.C. and put the incriminating evidence against them. Both the accused stated that they are not in illicit relationship with each other. A plea was taken that on the date of incident Saleem was not present at the spot and he was at his house in Agra. Both the accused stated that they are not in illicit relationship with each other. A plea was taken that on the date of incident Saleem was not present at the spot and he was at his house in Agra. Thereafter, the accused were given opportunity to lead their defence evidence. 17. DW-1- Pawan Kumar resident of Dayalbagh, Agra stated that he has done the job of electrician on the house of Saleem from 19.11.2016 to 28.11.2016. On 10.12.2016, when he had gone to take money from Saleem, he found that police from Amar Vihar Police Station has arrested Saleem. 18. DW-2- Zakir Hussain also stated that he was also doing the labour work and had accompanied Saleem from 14.11.2016 to 18.11.2016 to Village-Nithavali to attend the marriage of his cousin and thereafter he returned back to Agra from where the police arrested Saleem. 19. DW-3- Basu, about 14 years’ old son of deceased Kuldeep and co-accused Sanjoo, stated that he is the eldest among four brothers and sisters. His father Kuldeep was doing business of finance and has lent loan to many persons. He had exchanged hot words with the borrowers and thereafter on 26.11.2021, he left home. He along with his mother and his grand father Seoraj Singh searched for him and thereafter they got the information about his death. This witness stated that he has never seen Saleem with his mother Sanjoo and Saleem never stayed in his house during night time. His mother has sent a complaint against the borrowers but no action was taken by police. 20. In cross-examination by public prosecutor, this witness stated that he has studied up to Class VII and had not accompanied his grand father when FIR was registered. Saleem is from the side of his maternal grand parents i.e. Village-Narang, Police Station-Parikshitgarh. Saleem has never visited his house. He did not remember the name of persons to whom his father has lent money. This witness denied the suggestion that after he used to go to school, Saleem used to come to his house. He further stated that his father was not murdered by Saleem. 21. The trial court, thereafter, vide impugned judgment of conviction and order of sentence acquitted co-accused Sanjoo, wife of deceased-Kuldeep, whereas convicted the appellant. 22. This witness denied the suggestion that after he used to go to school, Saleem used to come to his house. He further stated that his father was not murdered by Saleem. 21. The trial court, thereafter, vide impugned judgment of conviction and order of sentence acquitted co-accused Sanjoo, wife of deceased-Kuldeep, whereas convicted the appellant. 22. Learned counsel for the appellant has submitted that the appellant is in continuous custody since the date of his arrest and as on today his custody is 7 years 1 month and 8 days. 23. The trial court record is requisitioned and the paper book is ready and therefore, the arguments in the main appeal is heard and the entire evidence is re-appreciated. 24. Learned counsel for the appellant has argued that as per the informant, the marriage of the deceased Kuldeep was performed with co-accused Sanjoo in the year 2002 and four children were born out of this wedlock. Learned counsel argues that though it is stated in the FIR that Saleem and Sanjoo had developed illicit relationship, however, from 2002 till 26.11.2016 when the dead body of Kuldeep was found, no complaint was ever given to police or any Panchayat or any respectable person in this regard. 25. The counsel has further argued that the statement of PW-2 is wholly not trust-worthy and therefore no reliance can be placed. The counsel submits that PW-2 has stated that on 26.11.2016, he along with informant PW-1- Seoraj Singh has seen Kuldeep Singh in company of Saleem and on his asking, Seoraj told him that Saleem has developed illicit relationship with his daughter-in-law. It is submitted that in cross-examination, this witness stated that he knew one Sunil Kumar Rastogi, who is landlord of Kuldeep and where couple was residing for the last 10 years and he used to visit the house of Sunil Kumar Rastogi but this witness has nowhere deposed that ever Sunil Kumar Rastogi told him about any matrimonial discord between Kuldeep and Sanjoo on account of the extra-marital relationship of Sanjoo with appellant Saleem. 26. 26. Counsel next argued that a totally unbelievable version is set up in the FIR where it is stated that on 25.11.2016 i.e. a date prior to the recovery of the dead body of Kuldeep, he had informed his father- PW1 that on account of illicit relationship of Sanjoo and Saleem, he is just fed up and he is going to register a complaint with the police. However, both Sanjoo and Saleem felt sorry and promised not to do any such thing in future and therefore, no action was taken. Counsel submits that on the very next day i.e. 26.11.2016, as per the informant both Kuldeep and Saleem were going together which is a totally unbelievable version that in such a strained relationship they will be going together for some work. 27. Counsel has argued that this version itself shows that Saleem has been falsely implicated as Kuldeep has either committed suicide or has fallen from the train resulting into his death. 28. Learned counsel has also referred to the recovery memo of blood stained stones and earth to submit that on 02.12.2016, the recovery was effected after the five days of the date of incident i.e. only after a complaint was lodged with the police by PW-1. Counsel has also assailed the recovery memo of a three feet long bamboo stick and the blood stained earth at the instance of the appellant Saleem on 10.12.2016 i.e. after about 15 days of the incident by submitting that the same has been framed on the appellant. 29. Counsel has also referred to the inquest report/Pachayatnama, Ex-Ka-3 dated 27.11.2016 prepared by the police in which it is stated that it is a case of train accident. 30. Learned counsel, having referred to the statement of PW-4- Dr. Praveen Kumar Gupta along with post-mortem report while describing the injuries received by the deceased, he submitted that all the injuries are sustained by deceased on the left side of the body which suggests that it is a case of accident. 31. Counsel has also referred to the cross-examination of PW-8 who has admitted that there is a curve on the railway track at the place of occurrence where similar accident usually takes place. 31. Counsel has also referred to the cross-examination of PW-8 who has admitted that there is a curve on the railway track at the place of occurrence where similar accident usually takes place. It is argued by the counsel for the appellant that the case of accident or suicide has been converted to a case of murder and the appellant has been falsely implicated in the case. 32. Learned counsel has argued that there is absolutely no motive proved on record. The motive attributed in the FIR is that both the accused, Sanjoo and appellant-Saleem, after developing extra-marital physical relationship, committed murder of Kuldeep. A reference is made to cross-examination of the Investigating Officer who has clearly stated that during investigation no evidence has come on record in this regard. Learned counsel further submitted that even no evidence is produced by PW-1- informant that in a 14 year old marriage between deceased-Kuldeep and Sanjoo from which four children were born, any complaint was given to any authority or Panchayat regarding the illicit relationship and therefore, the motive is not proved. 33. The counsel has further submitted that the appellant did not record the statement of the landlord where the couple was residing for the last ten years to the fact that they had any fight or difference of opinion on account of the extra-marital affair of Sanjoo with Saleem. Lastly, heavy reliance is placed on the statement of DW-3 who is 14 years old son of deceased Kuldeep and co-accused Sanjoo wherein he has clearly denied that his mother was having any relationship with appellant Saleem. This witness has stated that Saleem was a friend of his maternal uncle and he has never visited his house in Garh Mukhteshwar and never stayed at night. In cross-examination by the public prosecutor, the testimony of the defence witness could not be shattered. No cross-examination was offered to this witness regarding any strained relationship of his parents, on account of the intimacy of his mother with Saleem or that they used to fight with each other in this regard. Rather this witness has denied the suggestion that after he used to go to school, Saleem used to visit his house or stayed in house at night. 34. Rather this witness has denied the suggestion that after he used to go to school, Saleem used to visit his house or stayed in house at night. 34. This witness has categorically stated that his father had a dispute with the persons to whom he has given money on interest, he further denied that his father was murdered by Saleem. 35. Counsel submits that on the basis of the statement of DW-3.,co-accused Sanjoo was acquitted as the element of conspiracy was not proved and was missing, however, on same set of evidence, the appellant is wrongly convicted. 36. The counsel submits that no State appeal has been filed by the prosecution challenging the acquittal of Sanjoo and on the same set of evidence, the appellant had been convicted, despite there being no evidence of conspiracy. 37. The counsel has lastly argued that trial court has wrongly believed an unbelievable version that despite extra-marital relationship between Sanjoo and Saleem and his strained relationship with them, he was still going with him for some work on date of incident. 38. The counsel has also argued that in the entire investigation, in the recovery memo, except PW-1 and PW-2, who are the informant and witness of fact as stated in the FIR, no other independent witness was there to prove authenticity of recovery. The counsel submits that it has come in the statement of both PW-1 and PW-2 that the FIR was got registered after due deliberation and consideration, therefore, there is every possibility of false implication of the appellant. 39. Counsel has also argued that the appellant Saleem was not present at the spot on the date of incident as it is proved from the statement of DW-1 and DW-2 that he was at his house in Agra and therefore, the plea of Alibi was not appreciated by the trial court. 40. The counsel has lastly argued that the entire case is based on circumstantial evidence or the last seen evidence and the chain is missing. 41. Learned counsel has referred to Laxman Prasad vs. State of Madhya Pradesh (2023) 6 SCC 399 wherein the Supreme Court has held in case of circumstantial evidence, prosecution is to establish the motive, last seen and recovery of weapon on the pointing of accused and if the chain is not complete, conviction has to be set aside. 42. 41. Learned counsel has referred to Laxman Prasad vs. State of Madhya Pradesh (2023) 6 SCC 399 wherein the Supreme Court has held in case of circumstantial evidence, prosecution is to establish the motive, last seen and recovery of weapon on the pointing of accused and if the chain is not complete, conviction has to be set aside. 42. The counsel has also relied upon Pritinder Singh vs. State of Punjab (2023) 7 SCC 727 wherein the Supreme Case has relied upon earlier judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and has held as under : “15. Undisputedly, the present case is a case which rests on circumstantial evidence. The law with regard to conviction in the case of circumstantial evidence is very well crystallised in Sharad Birdhichand Sarda v. State of Maharashtra. 16. We may gainfully refer to the following observations of this Court in Sharad Birdhichand Sarda; (SCC p. 185, paras 153-54) “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. 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 where the following observations were made: [SCC para 19, p. 807] ‘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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” (emphasis in original) 17. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It has been held that 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. It has been held that 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. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so 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. 18. It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. In the light of these guiding principles, we will have to consider the present case.” 43. Reliance is also placed on a recent judgment of Supreme Court Pradeep Kumar vs. State of Haryana (2024) SCC OnLine SC 21 in which similar view has been taken while relying upon ‘Pritinder Singh’s’ case (supra), it is held that when there is a yawning gap between the charge against the appellant and prosecution evidence and the circumstances do not establish the guilt of appellant and the evidence adduced gives rise to improbabilities and inconsistencies, the conviction is not sustainable. 44. Learned A.G.A. for the State, in reply, has however submitted that motive in this case is proved as it has come in the statement of PW-1-informant that both accused, Sanjoo-wife of deceased Kuldeep and appellant-Saleem, have developed extra-marital affair and due to that reason, they in conspiracy with which other have murdered Kuldeep. It is also argued that the dead body was recovered from near the railway line and on the pointing out of appellant, a bamboo stick, slipper as well as blood stained earth was recovered from the spot. 45. Learned State Counsel has submitted that it has also come in evidence that Kuldeep has complained to his father about the extra-marital relationship of accused person, a day prior to the date of incident and therefore, the motive is proved. 46. 45. Learned State Counsel has submitted that it has also come in evidence that Kuldeep has complained to his father about the extra-marital relationship of accused person, a day prior to the date of incident and therefore, the motive is proved. 46. On a Court query, learned A.G.A. for the State could not dispute that the co-accused-Sanjoo stands acquitted and State has not filed any appeal challenging the judgment of acquittal of Sanjoo. 47. Needless to accord that a period of four years has already lapsed when the judgment of acquittal was passed. 48. After hearing counsel for the parties and on re-appreciation of the entire evidence, with the help of both the learned counsels, and going through the paper-book, we find merits in this appeal for the following reasons : A. The motive in this case is not proved. As per PW-1- informant, his son and co-accused Sanjoo were residing in a rented accommodation for the last 10 years. This witness has also stated that their marriage was performed in the year 2002 and four children were born who were residing with deceased Kuldeep and his wife Sanjoo. There is absolutely no evidence on record to suggest in an intervening period of 14 years at any point of time a complaint was given by Kuldeep or PW-1 to police, in this regard. There is no evidence that ever any Panchayat was convened within the family of Sanjoo about the extra-marital affairs of Sanjoo and Saleem or that any respected person was called in this regard. PW-2 has stated that he knew the landlord of the deceased namely Sunil Kumar Rastogi and he used to visit him at his house. This witness further stated that only a day prior to the incident, PW-1 informed him about the illicit relationship between Sanjoo and Saleem. The police has never recorded the statement of landlord of the couple to find out whether there was any such illicit relationship between the two. Even PW-8, Investigation Officer has categorically stated that during investigation no evidence has come on record about the illicit relationship between Sanjoo and Saleem. The most important witness i.e. DW-3, Basu, aged about 14 years who is son of deceased Kuldeep and Sanjoo, in clear and unequivocal terms denied that Saleem used to visit his house or he had any intimacy with his mother. The most important witness i.e. DW-3, Basu, aged about 14 years who is son of deceased Kuldeep and Sanjoo, in clear and unequivocal terms denied that Saleem used to visit his house or he had any intimacy with his mother. In cross-examination by the public prosecutor, this witness clearly stated that Saleem neither visited their house nor stayed at night. This witness has even denied that Saleem has committed murder of his father. Therefore, the motive attributed to appellant is not proved. B. Another important aspect is that though the charge of conspiracy under Section 120B was framed against co-accused Sanjoo and Section 302 I.P.C. for committing murder of her husband-Kuldeep on account of her extra-marital affair with appellant Saleem, however, the trial court believing the statement of DW-3, Basu, son of deceased-Kuldeep and Sanjoo, acquitted her of charge under Section 302 and 120B I.P.C. holding that the element of conspiracy is missing. The judgment of acquittal of Sanjoo has attained finality as no State appeal is filed. Therefore, on the same set of evidence where DW-3 has clearly stated that appellant has not committed murder of her father, even the conspiracy against the appellant is not proved. C. The complete chain of circumstantial evidence is also not proved in this case. PW-1 has stated that a day prior to the incident on 25.11.2016, his son Kuldeep informed him that he is going to lodge a complaint to police regarding extra-marital affair between Sanjoo and Saleem. However, they felt sorry and promised not to repeat such thing. On the very next day i.e. 26.11.2016, PW-1 has seen both Kuldeep and Saleem going together for some work, which is again an unbelievable version that despite strained relationship between deceased Kuldeep and Saleem who is alleged to having extra-marital affair with his wife Sanjoo, immediately on the next date of some dispute, he would accompany him for some work. D. At the cost of repetition, PW-2 for the first time came to know about such relationship on 26.11.2016 only when PW-1 informed him, though he stated that he was regularly visiting the house of landlord, Sunil Kumar Rastogi where Kuldeep and Sanjoo were living for the last ten years. The Panchayatnama is Ex-Ka3 in which the police at the first instance reported it a case of accident and similarly in the inquest report, it is recorded to be a train accident. The Panchayatnama is Ex-Ka3 in which the police at the first instance reported it a case of accident and similarly in the inquest report, it is recorded to be a train accident. It has come in the statement of PW-8 that the place of occurrence is on the railway line where there is a curve and many accidents used to occur at that place. Moreover, the deceased suffered majority of the injuries on his left side of body which also suggest it to be a case of accident. Therefore, the possibility that the deceased had either fallen from the train or had committed suicide cannot be ruled out. E. It has come in the cross-examination of the prosecution witness as well as in the statement of DW-3, son of the deceased that his father Kuldeep was doing business of finance and used to lend money to people. This witness has also stated that his father used to have dispute with the person to whom he has lent money. PW-1 has stated that financial condition of his son was not good at time of incident and there was money dealing between Kuldeep and Saleem which is another circumstance against prosecution. F. There is a delay of about five days in reporting the matter to the police. As per PW-1, Kuldeep did not return back on 26.11.2016 and the FIR was registered on 02.12.2016. G. It has come in the statement of both PW-1- informant and PW-2 Tilakram that they had gone to police station along with some other persons and after due consideration and discussion about the manner in which the FIR should be registered, the complaint was written by PW-2 on the direction of PW-1. The possibility of false implication of appellant cannot be ruled out specially in the view of fact that co-accused Sanjoo already stand acquitted by the trial court. H. Another aspect is that marriage of Sanjoo and Kuldeep was performed in the year 2002, as per PW-1 and four children were born out of this wedlock. DW-3, Basu is the eldest son who has categorically stated that there was no illicit relationship between his mother Sanjoo and appellant Saleem. H. Another aspect is that marriage of Sanjoo and Kuldeep was performed in the year 2002, as per PW-1 and four children were born out of this wedlock. DW-3, Basu is the eldest son who has categorically stated that there was no illicit relationship between his mother Sanjoo and appellant Saleem. The very fact that in a 14 year old marriage there was no matrimonial litigation or complaint to any authority on account of any matrimonial discord would show that prosecution has failed to prove this aspect of illicit relationship. I. It has come in the statement of PW-8, Investigation Officer that during investigation he has recorded the statements of one Vishwajeet Singh, the other son of informant, his wife Mayadin and son-in-law Ajeet but none of these witnesses were examined by the prosecution to prove the fact of extra-marital affair of Sanjoo and Saleem, specially when PW-8 has stated that no evidence has come on record in this regard. 49. Therefore, in the absence of prosecution having been able to prove any motive towards the appellant, conspiracy between him and Sanjoo who stands acquitted by the trial court holding that the conspiracy is not proved between them, the conviction of appellant is not sustainable in view of the judgements in Laxman Prasad vs. State of Madhya Pradesh (supra), Pritinder Singh vs. State of Punjab (supra) and Pradeep Kumar vs. State of Haryana (supra) and the fact that prosecution has failed to prove a complete chain of evidence against the appellant. 50. Accordingly, this appeal is allowed. Judgment of conviction and order of sentence dated 04.06.2019 are set aside. 51. The appellant is acquitted of the charge. He be released from the judicial custody forthwith, if not required in any other case. 52. The bail and surety bonds, if any, are discharged. Any pending application is also disposed of as infructuous. Record and proceedings be sent back to the Trial Court forthwith.