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2024 DIGILAW 2297 (ALL)

Veer Singh v. State of U. P.

2024-11-08

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

body2024
JUDGMENT : Ashwani Kumar Mishra, J. 1. The above criminal appeals are directed against the judgment and order dated 28.2.2019, passed by the First Additional Sessions and District Judge, Ghaziabad in Sessions Trial No.823 of 2009, arising out of Case Crime No.71 of 2009, under Sections 364/34, 302/34, 201/34 IPC, Police Station – Dhaulana, District – Ghaziabad; whereby the accused appellants Veer Singh, Vishnu, Satendra, Suresh, Munesh and Indrapal @ Indal Jatav have been convicted and sentenced for life imprisonment under Section 302/34 IPC alongwith fine of Rs. 30,000/-, each, and in default of payment of fine to undergo one year’s additional imprisonment; sentenced to ten years rigorous imprisonment alongwith fine of Rs.20,000/- each, under Section 364/34 I.P.C. and in default of payment of fine to undergo ten month’s additional imprisonment; sentenced to seven years imprisonment alongwith fine of Rs. 10,000/- each, under Section 201/34 I.P.C. and in default of payment of fine to undergo eight year’s additional imprisonment. All the sentences are directed to run concurrently. 2. The prosecution case is based upon the report of Manoj Kumar (PW-1), who is a resident of Dhaulana. On 12.3.2009, he had gone to offer prayers in Sai Temple in Sapnawat along with his wife and family members. After offering prayers at the temple while the family was resting, the informant’s son, aged about 4 years (the deceased) asked for an ice-cream. It was around 1:30 P.M. and the child started crying for the ice-cream. Informant sent his minor son alongwith PW-9 to get him an ice-cream. Near the ice-cream vendor, accused Shakti Singh and his maternal uncle, Vishnu, were also present, who gave four ice-creams to PW-9 and asked the minor son of the informant to stay with him on the pretext of offering him bigger ice-cream. PW-9 was sent back by the accused persons to the informant. After some time, accused Shakti Singh came to the informant and inquired about informant’s son. The informant told accused Shakti Singh that PW-9 had left him with him. The informant then tried to locate his missing son, but he could not be found. A missing report was lodged on 12.3.2009 in that regard. 3. On 14.3.2009, the dead-body of the informant’s son was found within the limits of Bahadurgarh Police Station at Mohammadpur Paswar. The informant told accused Shakti Singh that PW-9 had left him with him. The informant then tried to locate his missing son, but he could not be found. A missing report was lodged on 12.3.2009 in that regard. 3. On 14.3.2009, the dead-body of the informant’s son was found within the limits of Bahadurgarh Police Station at Mohammadpur Paswar. The allegation in the written report is that on account of old enmity, accused Shakti Singh alongwith his father Veer Singh and the maternal uncle Vishnu have abducted informant’s son and thereafter his body has been thrown in Mohammadpur Paswada. This written report has been exhibited during trial as Ex.Ka.-1. On the basis of this written report, Case Crime No.71 of 2009, under Sections 364/34, 302/34 and 201/34 I.P.C. came to be registered at Police Station Dhaulana, District Ghaziabad. 4. The Investigating Officer proceeded further in the matter and the inquest was conducted between 6:05 P.M. to 7:30 P.M. on the same day i.e. 14.3.2009. The inquest witnesses were of the view that the deceased has died on account of injuries caused and, therefore, they recommended holding of post-mortem in the matter. The post-mortem was conducted on the next day, i.e. 15.3.2009, wherein the cause of death was determined as asphyxia due to strangulation. Following injuries have been found on the deceased:- “(i) Abraded contusion left side in size 9x4 cm. (ii) Abraded contusion all our body in size 5x3 cm to 3x3 cm area. (iii) Face and nails cyanosed.” 5. The Magistrate took cognizance on the charge-sheet and committed the case to the Court of Sessions, where the charges were framed against the accused persons under Sections 364/34, 302/34 and 201/34 I.P.C. The charges were read out to the accused, who denied the accusation and demanded trial. 6. Before proceeding further, it would be necessary to refer to the contents of the missing report lodged earlier in the matter which is duly exhibited as Ex.Ka-2. The missing report was lodged by the informant in which it is alleged that the informant alongwith his wife and son Shobit @ Sahil (the deceased) had come from their village to offer prayers at Sai Baba Temple at Sapnawat. After the aarti got over, his son Shobit @ Sahil aged about four years had gone alongwith Avanish Kumar (PW-9) to fetch ice-cream. After the aarti got over, his son Shobit @ Sahil aged about four years had gone alongwith Avanish Kumar (PW-9) to fetch ice-cream. There they found accused Shakti Singh at the ice-cream vendor, who was having ice-cream. Avanish Kumar (PW-9) returned and when the informant inquired as to where is Shobit @ Sahil, Avanish Kumar (PW-9) told him that his son is with accused Shakti Singh at the ice-cream stall. Thereafter, accused Shakti Singh came to the informant when the informant asked as to where is Shobit @ Sahil, Shakti Singh told him (the informant) that his son had returned alongwith Avanish Kumar (PW-9). Effort was made to trace out the missing child but he could not be found. The contents of missing report has been recorded in G.D. as entry no.12 on 12.3.2009. This missing report is also signed by the informant (PW-1). 7. In order to prove its case the prosecution has produced following documentary evidence:- “1. FIR dated 14.03.09 as Ex.Ka.5 2. Written Report dated 14.03.09 as Ex.Ka.1 3. P.M. Report dated 15.03.09 as Ex.Ka.3 4. Panchayatnama dated 14.03.09 as Ex.Ka.2 5. Charge-sheet dated 10.05.09 as Ex.Ka.11” 8. In addition to the documentary evidence, referred to above, the prosecution has produced nine witnesses. PW-1 Manoj Kumar is the informant, whereas PW-2 Padam Singh is a family member, who allegedly saw the deceased going with the accused persons in a tempo. This disclosure by PW-2, however, has been made for the first time on 15.3.2009, which is on the fourth day of the disappearance of the victim and a day after his dead-body was found. PW-3 is the co-brother of PW-1, whose statement has also come into existence on 15.3.2009 and is similar to the version of PW-2. PW-4 Hemant Kumar is the witness of inquest and from his sugarcane field the dead-body of the deceased was recovered on 14.3.2009. PW-5 Dr. Sunil Kamboj conducted post-mortem on the dead-body of the deceased on 15.3.2009 at 12.10 PM. PW-6 Japal Singh is the scribe of the written report on the basis of which FIR has been registered. PW-7 is Sub-Inspector Qazi Sirajuddin, who has prepared the inquest report and has proved other police papers prepared on 14.3.2009. PW-8 is Inspector Sunil Kumar, who was the Investigating Officer of the case. PW-6 Japal Singh is the scribe of the written report on the basis of which FIR has been registered. PW-7 is Sub-Inspector Qazi Sirajuddin, who has prepared the inquest report and has proved other police papers prepared on 14.3.2009. PW-8 is Inspector Sunil Kumar, who was the Investigating Officer of the case. PW-9 is a family member of the informant, who had taken the deceased to get him ice-cream and from whose possession the deceased had gone missing. 9. The above evidence of prosecution was confronted to the accused for recording their statements under Section 313 Cr.P.C. The accused persons stated that the report lodged against them is false and the evidence is not reliable. They also pleaded ignorance about some of the evidence led in the matter. The accused persons, however, stated that they have been falsely implicated in the present case. Accused Veer Singh has also stated that PW-3 has made false statement on account of he (PW-3) being the co-brother of the informant and that investigation has not been conducted properly. He has also alleged that due to enmity false statements are made by the witnesses. Accused Veer Singh has further stated that prior to this incident his son Shakti Singh had beaten the informant and only because of such enmity he has been falsely implicated. 10. Trial court on the basis of evidence led in the matter has ultimately convicted and sentenced the accused appellants on the finding that the prosecution has established its case beyond reasonable doubt. Thus aggrieved the accused appellants are before this Court. 11. We have heard Sri S.P.S. Chauhan alongwith Sri V.P. Singh, Ramesh Kumar Singh, learned counsels for the appellants as well as Sri Adarsh Bhushan alongwith Sri Abhay Singh Tomar, learned counsel for the informant. Sri Vikas Goswami, learned AGA has appeared for the State. We have also perused the original records of the trial court in addition to the material placed on record in the paper book of the case. 12. The prosecution case is specific. The informant alleges that he had gone alongwith his family members to offer prayers at the Sai Temple on 12.3.2009. After the darshan informant’s son asked for ice-cream and started crying to press his demand. The informant sent his son with PW-9 to get ice-cream and it is thereafter that his son had gone missing. The prosecution case is specific. The informant alleges that he had gone alongwith his family members to offer prayers at the Sai Temple on 12.3.2009. After the darshan informant’s son asked for ice-cream and started crying to press his demand. The informant sent his son with PW-9 to get ice-cream and it is thereafter that his son had gone missing. The prosecution case is that the accused Shakti Singh on the pretext of offering a bigger ice-cream had detained the deceased with him and sent back PW-9 with four ice-creams. Prosecution case further is that accused Shakti Singh and Vishnu were present at the fate held near the temple. They were in a tempo. PW-2 and PW-3 are the two witnesses, who claim that they saw the deceased being taken by accused Shakti Singh to the tempo whereafter accused Veer Singh and Vishnu took informant’s son in the tempo and thereafter the dead-body of the child was found at a distance of nearly sixty kilometers from the place where he had gone missing. The prosecution case essentially relies upon the testimony of four witnesses of fact namely, PW-1, PW-2, PW-3 and PW-9. In order to appreciate the prosecution case we are, therefore, required to refer to the evidence of the aforesaid four witnesses. 13. PW-1 is the father of the four year old missing child, who has been done to death. In his examination-in-chief he stated that on 12.3.2009 he had gone with his family to have darshan in the Sai Temple at village Sapnawat. There was also a fate organized in the same village on that day. After having darshan PW-1 was talking to the family members in the fate at about 1.30 in the afternoon and PW-9 was with him. It was at that time that the son of the informant Shobit @ Sahil insisted for having ice-cream. PW-9 on the instruction of informant took Shobit @ Sahil to the nearby ice-cream stall where accused Shakti Singh and Vishnu were present from before. Ice-cream was offered to informant’s son by accused Shakti Singh. Avanish Kumar (PW-9) returned to the informant alongwith four ice-creams. When the informant inquired from PW-9 as to why he had left Shobit @ Sahil then PW-9 informed that Shakti Singh had promised to get a bigger ice-cream to his son. Ice-cream was offered to informant’s son by accused Shakti Singh. Avanish Kumar (PW-9) returned to the informant alongwith four ice-creams. When the informant inquired from PW-9 as to why he had left Shobit @ Sahil then PW-9 informed that Shakti Singh had promised to get a bigger ice-cream to his son. After sometime, however, accused Shakti Singh came to PW-1 and inquired as to where is Shobit @ Sahil. PW-1 told accused Shakti Singh that Avanish Kumar (PW-9) had left him with him. Thereafter all the persons started searching the missing boy but he could not be found. When the missing son could not be found till late in the evening a missing report was lodged at the Sapnawat Chawki on 14.3.2009. PW-1 later came to know that dead-body of his child has been found within the limits of police station Bahadurgarh, whereafter he lodged the written report. The written report has been proved by PW-1. He has further alleged that due to old enmity accused persons have killed his son. PW-1 has also alleged that on the previous Holi there was a fight between him and the accused persons which was got resolved with the intervention of the villagers. The accused persons, however, maintained enmity ever since then. All the accused are from the village of PW-1. He further stated that accused Shakti Singh, Veer Singh and Vishnu are from his family. 14. In his cross-examination PW-1 has stated that he had left at about 10.00 in the morning alongwith his wife and son for going to the fate organized in the village. Alongwith him other family members including accused Shakti Singh, his mother, sister as well as his uncles (chacha and tau) had also accompanied him. All these persons had gone in the same bus, however, they paid their fare separately. They reached the fate at about 11.00 in the morning. The fate was organized in village Sapnawat. After alighting from the bus all the persons left together and remained together in the village. They remained in the fate till 5.00 PM since his son had gone missing. The son had gone missing at about 1.30 in the afternoon. Everyone tried to search the missing boy. They returned to village at about 8.00 PM. A missing report was also lodged in the matter. They remained in the fate till 5.00 PM since his son had gone missing. The son had gone missing at about 1.30 in the afternoon. Everyone tried to search the missing boy. They returned to village at about 8.00 PM. A missing report was also lodged in the matter. In his further cross-examination he has stated that in the written report he had only named accused Shakti Singh as he had suspected his role in the disappearance of his son. The other two accused, namely Veer Singh is the father, whereas Vishnu is the maternal uncle of accused Shakti Singh. All of them are from his village. He has proved the missing report dated 12.3.2009. Munesh is not from his village. He did not know Munesh from before and he had no enmity with him. He had not sent Munesh to the place where his son had disappeared. PW-1 has also stated that the incident leading to their enmity occurred in 2008 but in that regard no FIR was lodged since the dispute was got resolved by the villagers. He has admitted that he has not seen accused Shakti Singh taking his son. He has further stated that PW-9 had come to him and had told him that the missing son was left with accused Shakti Singh and Vishnu, who promised to offer him a bigger ice-cream. PW-1 stated that he had no objection to it as all the accused were his family members. There was a lot of rush/crowd in the fate. He has also stated that he had not seen accused Shakti Singh offering ice-cream to his son Shobit @ Sahil. PW-1 has admitted that he had not specified that accused Vishnu and Veer Singh had met him in the fate. He has also stated that this fact was disclosed by him to the Investigating Officer and he cannot explain as to why such facts were not mentioned by the Investigating Officer in his statement. He has admitted that PW-2 is his co-brother but he was not aware as to whether he had any mobile or not. PW-3 is doctor by profession, who has his clinic in Delhi. PW-1 was later recalled and his statement was again recorded on 10.3.2011. 15. PW-2 has fully supported the prosecution case in his statement made before the court. He has admitted that PW-2 is his co-brother but he was not aware as to whether he had any mobile or not. PW-3 is doctor by profession, who has his clinic in Delhi. PW-1 was later recalled and his statement was again recorded on 10.3.2011. 15. PW-2 has fully supported the prosecution case in his statement made before the court. He claimed that he too had come to the fate and had witnessed the fact that Shobit @ Sahil was brought by accused Shakti Singh and gave him to accused Veer Singh. Accused Veer Singh, Vishnu, Satendra, Suresh and Munesh were already sitting in the tempo from before. The tempo went towards Gulawati. The informant’s son was taken by other accused in the tempo but accused Shakti Singh stayed back. He further claims that PW-3 Preetam Singh was also present at the fate and was talking to him when the incident occurred and the informant’s son was taken in the tempo. He further stated that from the fate he left to his in-laws house as his brother-in-law was not well and it was there that he came to know that the informant’s son has been done to death. On coming to know of such facts he informed about his having seen the deceased being taken by the accused persons in the tempo. 16. In the cross-examination PW-2 stated that he came on a motorcycle from Dhaulana. He had, however, not disclosed this fact to the Investigating Officer. He met nobody from his village in the fate. He did not remember registration number of the tempo nor did he remember what was the make of the tempo. He did not disclose the tempo number to the Investigating Officer. His in-laws live at a distance of 37 kilometers. He had not disclosed the Investigating Officer that accused Veer Singh had dragged the deceased in the tempo. He has denied the suggestion that on 12.3.2009 he was at his in-laws house and had actually not seen the incident. PW-2 also claimed to have not met PW-1 in the fate. He had not met him in the temple, either. He has supported the prosecution case that an incident occurred about a year ago in which a fight had taken place between the accused and the informant. 17. The statement of PW-3 is on similar lines. PW-2 also claimed to have not met PW-1 in the fate. He had not met him in the temple, either. He has supported the prosecution case that an incident occurred about a year ago in which a fight had taken place between the accused and the informant. 17. The statement of PW-3 is on similar lines. He has reiterated that he saw accused Veer Singh, Vishnu, Satendra, Suresh waiting in the tempo. Accused Shakti Singh brought informant’s son to the tempo and other accused then took him with them. 18. PW-9 is the other witness of fact, who too has supported the prosecution case. He claims that he had gone alongwith family members to offer prayers at the Sai Temple on 12.3.2009 at about 10.30 in the morning. He has alleged that son of the informant had asked for ice-cream, who was about four year old. PW-1 gave him Rs.20/- to get the ice-cream. When he came to the ice-cream stall he found accused Shakti Singh and Vishnu there. He returned with four ice-creams leaving behind informant’s son who was offered a bigger ice-cream by accused Shakti Singh. Informant’s son remained with accused Shakti Singh. The informant’s son was with accused Shakti Singh. There was a tempo standing nearby in which 5-6 persons were sitting. When he enquired from accused Shakti Singh as to where is the missing child he was informed that he (informant’s son) followed PW-9. In the cross-examination PW-9 has stated that alongwith accused Shakti Singh his mother, his younger brother and sister had also come to the fate. All these persons were together at the fate. They came together in the same bus. The ice-cream stall was at a distance of 50 yards from Sai Temple. He has further stated the he could not recognize the persons, who were sitting in the tempo. 19. It is primarily on the strength of above evidence that the prosecution proposes to establish its case against the accused persons. 20. Learned counsel for the appellant submits that this is a case based on circumstantial evidence in which chain of circumstance is not complete. He submits that neither motive is strong enough to commit the offence nor the motive otherwise finds any justification for accused Veer Singh to commit such offence. 20. Learned counsel for the appellant submits that this is a case based on circumstantial evidence in which chain of circumstance is not complete. He submits that neither motive is strong enough to commit the offence nor the motive otherwise finds any justification for accused Veer Singh to commit such offence. Learned counsel further submits that the prosecution case is self-contradictory, inasmuch as there is a material improvement made in the written report. It is argued that accused Veer Singh and Vishnu have been added subsequently as a result of an afterthought. 21. Learned counsel for the appellants submits that PW-2 and PW-3 have actually not seen the incident and they have been subsequently introduced by the prosecution only to give strength to its case. Learned counsel submits that the evidence on record clearly exposes the falsity of the prosecution case, inasmuch as there are material improvement in the version of the prosecution witnesses and their initial version in the missing report had been altered at the subsequent stage to implicate the other accused. 22. Learned counsel further submits that accused Shakti Singh has been declared juvenile and has been acquitted by the Juvenile Justices Board against which no proceedings have been initiated. It is also submitted that accused Vishnu has also died during the pendency of the present appeal. Learned counsel further submits that the introduction of accused Veer Singh is only on the suspicion and apprehension, inasmuch as the informant apparently suspected their role on account of previous fight between accused Shakti Singh and him. Submission is that implication of accused appellants is based only on apprehension and suspicion and the witnesses have been introduced later purposely. Learned counsel further submits that the judgment of conviction and sentence is liable to be reversed. 23. Learned AGA as well as learned counsel for the informant, on the other hand, submits that this is a case of brutal murder of four year old child and there is no reason to falsely implicate the accused. It is further argued that the presence of PW-2 and PW-3 at the place of occurrence is clearly established beyond reasonable doubt and the chain of circumstance to establish the implication of accused appellants is amply established on the strength of prosecution evidence brought on record. 24. It is further argued that the presence of PW-2 and PW-3 at the place of occurrence is clearly established beyond reasonable doubt and the chain of circumstance to establish the implication of accused appellants is amply established on the strength of prosecution evidence brought on record. 24. From the facts as are noticed above, we find that the accused Shakti Singh, Veer Singh and Vishnu are closely related to PW-1. They are part of their extended family. It has also come in evidence that accused Shakti Singh alongwith his mother and other brothers including uncles had gone to the fate on the date of incident. In the written report the informant has only disclosed presence of accused Shakti Singh on the date of incident. The written report is absolutely silent with regard to presence of accused Veer Singh and Vishnu or other accused. Their implication has surfaced only on the strength of testimonies of PW-2 and PW-3 and, therefore, this court is primarily required to examine as to whether presence of PW-2 and PW-3 at the fate and their statement of having seen the deceased child being taken in a tempo, by the accused persons, inspires confidence or not. 25. This case admittedly is based on circumstantial evidence. The circumstances which are relied upon by the trial court to convict and sentence the accused appellants is in the nature of last seen. The implication of the accused appellants is based upon the version of PW-2 and PW-3. Incidently PW-2 and PW-3 are close family members of PW-1. They claim to have come to the same fate on the same day but they have not met the informant or other family members. All other persons, who have come from the village to attend the fate have been specified by PW-1 in his statement. PW-1 in his statement has specified that accused Shakti Singh had come in the same bus alongwith his mother, brother, sisters and uncles. There is no reference in the statement of PW-1 that accused Veer Singh and Vishnu and other accused had also come in the same bus or with them to attend the fate. Normally when persons from the same family are to visit a temple or a fate it would be expected that they would come together. There is no reference in the statement of PW-1 that accused Veer Singh and Vishnu and other accused had also come in the same bus or with them to attend the fate. Normally when persons from the same family are to visit a temple or a fate it would be expected that they would come together. The prosecution evidence is absolutely silent as to how accused Veer Singh arrived at the fate when admittedly he was not accompanied by his other family members. Similarly for accused Vishnu no other explanation is given in the testimony of PW-1. It is, therefore, clear that accused Veer Singh and Vishnu had not joined the other family members in coming to the fate. This admitted circumstance has to be kept in view while evaluating the prosecution evidence on record. 26. Prosecution evidence, taken cumulatively, suggests that on account of a prior enmity the accused persons took the deceased and have killed him. For such purposes accused Veer Singh and Vishnu and other accused were waiting in a tempo and as soon as accused Shakti Singh brought the child with him, the other accused took him to an undisclosed place where he was done to death later. This version of the prosecution has a major catch. The evidence on record clearly shows that it was the four year old child who insisted for an ice-cream. On such insistence of the child PW-1 sent him with PW-9 to the ice-cream stall. Accused Shakti Singh allegedly was present at the ice-cream stall. So far as accused Veer Singh and Vishnu and other accused waiting in the tempo is concerned we fail to appreciate the prosecution case in this regard, inasmuch as the fact that four year old child would ask for an ice-cream or that PW-1 would sent him to the ice-cream stall alongwith PW-9 cannot be known from before to the other accused. We also fail to comprehend as to how all the other accused were waiting in the tempo when they were not aware that the child would be taken to an ice-cream stall or would be brought by accused Shakti Singh to them. The planned conspiracy, therefore, does not appear to be natural and apparently was introduced by the prosecution later in the statement of PW-2 and PW-3. This prosecution theory otherwise does not gel with the rest of the prosecution case. The planned conspiracy, therefore, does not appear to be natural and apparently was introduced by the prosecution later in the statement of PW-2 and PW-3. This prosecution theory otherwise does not gel with the rest of the prosecution case. The presence of PW-2 and PW-3 is otherwise not disclosed by PW-1. We have already noticed the statement that PW-1 that he had not met PW-2 and PW-3 at the fate. Their presence was not mentioned in the missing report. PW-2 and PW-3 have been introduced for the first time, together, on 15.3.2009. Their statement were also recorded together on the same date by the investigating officer. PW-2 and PW-3 clearly stated that they were together and both of them have seen the accused persons taking the deceased in a tempo. Possibility of PW-2 and PW-3 having been introduced later, as is argued on behalf of the appellants, on account of suspected role of these accused, cannot be lightly brushed aside. The fact that PW-2 and PW-3 both had remained out of the village for the next three days after the incident is also a matter of unique coincidence. The possibility that a story was introduced only to explain the subsequent introduction of PW-2 and PW-3, later, is thus a distinct possibility. We have doubt with regard to presence of PW-2 and PW-3 at the place of occurrence or they having seen the accused persons taking the minor four year old child in a tempo. The circumstances of the present case in its entirety clearly show that there is one version of the incident disclosed in the missing report which appears to be more consistent with the statement of PW-1, wherein PW-2 and PW-3 do not figure. The accused persons also do not figure in it. It is the subsequent version introduced after the dead-body was found that other accused have been implicated, and to justify their implication the prosecution has apparently introduced PW-2 and PW-3. 27. Enmity between the parties is specifically alleged by the prosecution. Enmity is a double edged sword. It can be a ground for committing the offence and can also be a ground for false implication. The Court will have to carefully scrutinize the evidence in order to rule out the possibility of false implication on account of enmity. This is particularly so when the two subsequent witnesses introduced are close family members. It can be a ground for committing the offence and can also be a ground for false implication. The Court will have to carefully scrutinize the evidence in order to rule out the possibility of false implication on account of enmity. This is particularly so when the two subsequent witnesses introduced are close family members. Law with regard to interested witnesses are well settled. Though the testimony of interested witnesses can be relied upon but the courts are expected to be more careful in order to rule out false implication and look for independent corroboration while evaluating their testimony. When we analyse the statement of PW-2 and PW-3 in the context of the facts noticed above we are not inclined to place reliance upon their version, as the defence has successfully created doubt with regard to their presence at the place of occurrence. Once the testimony of PW-2 and PW-3 is discarded the prosecution case with regard to implication of accused Veer Singh, Vishnu and all others fails as the case of prosecution case is based primarily upon the evidence of last seen. 28. The view that we propose to take finds support from the judgment of Supreme Court in Jabir & Ors. vs. State of Uttarakhand 2023 SCC OnLine SC 32, wherein the Court has dealt with a case of circumstantial evidence and the value which can be attached to the evidence of last seen in it. After referring to the law laid down in Sarad Birdichand Sarda, which is locus classicus on the point, the court has observed as under in para 25:- “25. A basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such 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 none else; further, the facts so proved should unerringly point towards the guilt of the accused. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.5 These were so stated in Sarad Birdichand Sarda (supra) where the court, after quoting from Hanumant, observed that: “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 : [SCC para 19, p. 807 : SCC (Cri.) p. 1047] 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.” 29. Reliance is also placed upon the judgment of Supreme Court in Rambraksh Vs. State of Chattisgarh 2016 12 SCC 251 , wherein the Court has observed as under in para 12:- “12. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 29. Reliance is also placed upon the judgment of Supreme Court in Rambraksh Vs. State of Chattisgarh 2016 12 SCC 251 , wherein the Court has observed as under in para 12:- “12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, 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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.” 30. After referring to a series of judgment the Court has observed that the prosecution case based on the solitary evidence of last seen is not liable to be relied upon. The observation made by the Court in para 31 is reproduced:- “31. In the present case, save the “last seen” theory, there is no other circumstance or evidence. Importantly, the time gap between when the deceased was seen in the company of the accused on 09-10-1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the “last seen” circumstance (even if it were to be assumed to have been proved) to convict the accused-appellants is not justified.” 31. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the “last seen” circumstance (even if it were to be assumed to have been proved) to convict the accused-appellants is not justified.” 31. On the basis of discussions and deliberations made in light of the evidence led on record, we are of the view that it would not be safe to convict the accused persons based only on the testimony of PW-2 and PW-3, when the chain of circumstance is otherwise not complete. It is otherwise well settled that suspicion, however strong cannot be a substitute for evidence, which alone can be relied upon to award conviction to the accused. We are of the view that the trial court has not subjected the evidence of PW-2 and PW-3 carefully and the circumstances as have been noticed above with regard to subsequent introduction of the two witnesses has escaped consideration of the trial court. The finding of the trial court that the prosecution has succeeded in proving its case, therefore, cannot be sustained and the same is consequently reversed. 32. These appeals succeed and are allowed. The judgment and order dated 28.2.2019, passed by the First Additional Sessions and District Judge, Ghaziabad in Sessions Trial No.823 of 2009, arising out of Case Crime No.71 of 2009, under Sections 364/34, 302/34, 201/34 IPC, Police Station – Dhaulana, District – Ghaziabad is set aside. 33. All the accused-appellants, who are reported to be in jail, shall be set at liberty, forthwith, unless they are wanted in any other case, subject to compliance of Section 437A Cr.P.C.