Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2562 (ALL)

Sattar v. State of U. P.

2024-12-20

NALIN KUMAR SRIVASTAVA, SIDDHARTH

body2024
JUDGMENT : Nalin Kumar Srivastava, J. 1. This criminal appeal under Section 374 (2) of the Criminal Procedure Code has been preferred against the judgement and order dated 16.4.2012 passed by the IInd Additional Sessions Judge, Court No.3, Muzaffarnagar in Sessions Trial No.1580 of 2008 (State vs. Sattar), arising out of Case Crime No. 695 of 2008, Police Station Shamli, District Muzaffarnagar whereby the accused appellant was convicted under Sections 363 , 302 and 201 IPC and sentenced to undergo four years rigorous imprisonment for the offence under Section 363 IPC with a fine of Rs. 5,000/-, to undergo life imprisonment for the offence under Section 302 IPC with a fine of Rs. 10,000/- and to undergo two years rigorous imprisonment with a fine of Rs. 1000/- for the offence under Section 201 IPC with default clause. All the sentences were directed to run concurrently. 2. The prosecution story, as culled out from the record, is that a missing report Ext. ka-1 in respect of missing of Ummed, aged about 4 years, son of Momin since 10.5.2008 at about 10.00 a.m. was reported at P.S. Kotwali Shamli on 14.5.2008, which was registered at Ext. ka-5. Subsequently, another application Ext. ka-2 was given by the informant at P.S. Shamli alleging therein that his missing son was last seen in the company of Sattar son of Abbas by Shamshad and Lilu on 10.5.2008 at about 11.00 a.m. During investigation, accused Sattar was arrested by the police and on his pointing-out from a sugar cane field one skeleton of deceased Ummed was retrieved by the police on 16.5.2008. The Investigating Officer performed necessary formalities during investigation and recorded the statements of witnesses as well. The recovered skeleton was sent for inquest and post mortem and after completion of investigation charge sheet under Sections 363 , 302 and 201 IPC was submitted against accused Sattar. The case being exclusively triable by the Sessions Court was committed to the Court of sessions where charges under Sections 363 , 302 and 201 IPC were framed on 25.2.2009 against the accused, who denied all the charges and claimed for trial. 3. To bring home the charges against the accused, the prosecution relied upon the oral evidence of P.W.-1 Momin - informant/father of the deceased, P.W.-2 Lilu, the witness of last seen, P.W.-3 Ajay Prakash, scribe, P.W.-4 Dr. 3. To bring home the charges against the accused, the prosecution relied upon the oral evidence of P.W.-1 Momin - informant/father of the deceased, P.W.-2 Lilu, the witness of last seen, P.W.-3 Ajay Prakash, scribe, P.W.-4 Dr. Pankaj Jain, P.W.-5 Shyam Pratap, the first Investigating Officer, P.W.-6 S.H.O. Brijpal Singh, the second Investigating Officer and PW-7 Dr. V.V. Bhargav, radiologist. 4. In order to corroborate the oral evidence adduced by the prosecution, the prosecution has also relied upon the documentary evidence as written report Ext. ka-1, application moved by the informant Ext. ka-2, recovery memo Ext. ka-3, G.D. Ext. ka-4, chik F.I.R. Ext. ka-5, post mortem report Ext. ka-6, report regarding skeleton Ext ka-7, letter to C.M.O. Ext. ka-8, inquest report Ext. ka-9, letter R.I. Ext. ka-10, letter C.M.O. Ext. ka-11, photo nash Ext. ka-12, form no. 13 Ext. ka-13, site plan Ext. ka-14, charge sheet Ext. ka-15, G.D. dated 16.5.2006 Ext. ka-16, x-ray report Ext. ka-17, FSL report Ext. ka-18 and recovery memo Ext. ka-3A and material Ext. 1 to 7 have also been proved in evidence. 5. After conclusion of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded and the incriminating evidence and circumstances were put to him wherein he claimed the prosecution evidence as false and fabricated and denied to adduce any defence evidence, however, Sabir was himself produced as DW-1. 6. PW-1 Momin, the informant/father of the deceased child in his evidence proves the missing report as Ext. ka- 1 and other written report naming the accused Sattar as Ext. ka-2. He is also a witness of recovery of skeleton and clothings of his son and proves it as Ext. ka-3 and further before the Court he proves the incriminating materials as material Ext. 1 to 5. 7. PW-2 Lilu is the witness of last seen together and he in his evidence states that he had seen the deceased child Ummed with accused Sattar coming from the village and subsequently he disclosed this fact to the informant Momin. 8. PW-3 C/C Ajay Prakash is the scribe who has proved the registration G.D. for missing report as Ext. ka-4 and chik F.I.R. as Ext. ka-5. 9. PW-4 Dr. Pankaj Jain performed the autopsy of the skeleton of the deceased Ummed on 17.5.2008. 8. PW-3 C/C Ajay Prakash is the scribe who has proved the registration G.D. for missing report as Ext. ka-4 and chik F.I.R. as Ext. ka-5. 9. PW-4 Dr. Pankaj Jain performed the autopsy of the skeleton of the deceased Ummed on 17.5.2008. The condition of the skeleton has been explained by him in his evidence and he proves post mortem report as Ext. ka-6 and further proves the post mortem report prepared by the medical board to which he was also a member as Ext.ka-7. 10. PW-5 S.I. Shyam Pratap is the first I.O. of the case who proves the proceeding of investigation, recording of statements of witnesses, arrest of accused Sattar and also recovery of skeleton and clothings of deceased child on the pointing out of accused Sattar in the presence of witnesses and further he proves the inquest report, letter to R.I., letter to C.M.O., photo nash, challan nash as Ext. ka-9 to Ext. ka-13. He also proves the site plan of the place of recovery as Ext. ka-14 and during investigation he also added Section 363 , 302, 201 IPC to the matter. 11. PW-6 S.H.O. Brijpal Singh also corroborates the story of arresting the accused and recovery of incriminating articles on his pointing out as second I.O. of the case. He proves the memo of recovery of skeleton and nikkar and shirt relating to the deceased as Ext. ka-3A. He further proves charge sheet as Ext. ka-15. 12. PW-7 Dr. V.V. Bhargava, radiologist proves the x-ray report as Ext. ka-17 and further proves x-ray plates as material Ext. 6 and 7. 13. The trial Court after hearing both the sides at length and scrutinizing and analyzing the evidence on record convicted the accused appellant under Sections 363 , 302 and 201 IPC and sentenced, as mentioned here-in-above. 14. Heard Shri Onkar Singh and Shri Sachin Malik, learned counsel for the appellant and Shri Gyan Narayan Kanaujiya, learned A.G.A.-I for the State. 15. The impugned judgement and order passed by the learned Sessions Court has been assailed by the learned counsel for the appellant on various grounds. It has been vehemently submitted that the entire prosecution story is false and frivolous and the present appellant has been falsely roped in this case by the informant. It is also submitted that the present case is based upon circumstantial evidence. It has been vehemently submitted that the entire prosecution story is false and frivolous and the present appellant has been falsely roped in this case by the informant. It is also submitted that the present case is based upon circumstantial evidence. Nobody has seen the deceased boy in the company of the accused appellant and witness Lilu, who has been examined as last seen witness, is not reliable at all and his presence over the place of occurrence is not natural and probable. It is also submitted that the present appellant had no motive at all to commit the alleged crime. It is further submitted that the prosecution has failed to prove that the skeleton, which was allegedly retrieved on the pointing out of the appellant, was really of the deceased child of the informant. It is also submitted that the medical evidence also does not support the prosecution version. It is further submitted that in the present case the missing of links to make a complete chain of circumstances is a relevant lacuna on the part of the prosecution. The chain is not complete in any case which further results into failure of the prosecution case. On such grounds a prayer has been made for the acquittal of the appellant by allowing the present criminal appeal. 16. Per contra, learned A.G.A. vehemently opposed the contentions raised by the learned counsel for the appellant. It has been submitted that it is a case based on circumstantial evidence. There is no possibility of false implication of the accused appellant in this case. It is true that the case in hand depends upon circumstantial evidence but the victim boy was lastly seen in the company of the accused himself by the independent witnesses, who had no grudge or enmity with the accused appellant and they had never any occasion to falsely implicate the present appellant in this case. The investigation conducted in this case has no serious omission or negligence on the part of the Investigating Officer. It is also submitted that there is no perversity in the impugned judgement which is well reasoned and sentencing is also proper and the present criminal appeal is liable to be dismissed. 17. I have considered the rival submissions made by the learned counsel for the parties and perused the material available on record including the impugned judgment and order carefully. 18. 17. I have considered the rival submissions made by the learned counsel for the parties and perused the material available on record including the impugned judgment and order carefully. 18. Indubitably, present is a case based on circumstantial evidence and no direct evidence lies on record to indicate the involvement of the accused appellant in the alleged crime. What the prosecution is under obligation to prove in a case based upon circumstantial evidence, has been settled in umpteen of cases by the Hon'ble Apex Court and this Court as well. 19. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , the Hon’ble Apex Court laid down following five golden principles, i.e. the panchsheel for the proof of a case based on circumstantial evidence: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ''may be proved' and "must be or should be proved". 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. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused i.e. they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved, and (v) 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. 20. In G. Parshwanath Vs. State of Karnataka, (2010) 8 SCC 593 , it was held that 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, where various links in the chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court. 21. 21. Recently in Raju Vs. State of Rajasthan, 2022 (121) ACC 954 , the aforesaid legal position has been reiterated. 22. The case in hand is liable to be decided on the touch stone of law laid down by the Hon’ble Supreme Court as mentioned above. Applying the aforesaid proposition of law in the present case, we are under obligation to search out whether having taken cumulatively, the circumstances are forming the chain which is so complete that there is no escape from the conclusion that within all normal and human probabilities, the crime was committed by the accused only and none else and the aforesaid conclusion must be free from any other hypothesis than that of the guilt of the accused. 23. In a plethora of judgments delivered by the Hon’ble Apex Court it has been held that the unusual and suspicious conduct of the accused in a case based on the circumstantial evidence particularly under the theory of ‘last seen together’ may lead to his conviction because if the prosecution on the basis of sufficient evidence pointing towards the guilt of the accused discharges his initial burden of proof and successfully establishes that the victim was last seen together with the accused, the burden of proof in view of Section 106 of the Evidence Act shifts upon the accused to show as to what happened when the victim departed from his company and the exact happening of the occurrence after the ‘last seen together’ is now to be proved by the accused and not by the prosecution. It is true that the last seen together is never a conclusive proof of the guilt of the accused but if the surrounding circumstances relating to the incident like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, non-explanation of death of the deceased also stand with cogent evidence against the accused it may lead to the conviction of the accused. In that way the theory of ‘last seen together’ has a significant role to determine the success or failure of the prosecution in a case based on circumstantial evidence. Last Seen Together 24. To start with the first circumstance, the theory of ‘last seen’ may be appreciated. In that way the theory of ‘last seen together’ has a significant role to determine the success or failure of the prosecution in a case based on circumstantial evidence. Last Seen Together 24. To start with the first circumstance, the theory of ‘last seen’ may be appreciated. It is always to be kept in mind that the essence of the theory of ‘last seen together’ is not that just prior to the incident the victim was seen in the company of the accused. It means that the time gap between the last seen of the deceased in the company of the accused and his death should be so proximate to leave even an iota of doubt as to whether the deceased had opportunity to move in the company of the other persons leaving the company of the accused. The legal theory in connection with proof of ‘last seen together’ if on the basis of evidence is found well proved, the burden of proof shifts upon the accused and it is he who is required to explain as to how the occurrence occurred and failure on his part to furnish satisfactory explanation in this regard may stand adverse to him and strong presumption of his guilt may rise in this situation. 25. In Dharam Deo Yadav vs. State of U.P., (2014) 5 SCC 509 , it has been held that normally the ‘last seen theory’ comes into play when the time gap between the point of time when the accused and 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. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, as in the present case, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, as in the present case, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. In such a situation, the proximity of time between the event of last seen together and the recovery of the dead body or the skeleton, as the case may be, may not be of much consequence". 26. The legal position in respect of the last seen theory has also been explained in a catena of decisions of the Apex Court and this Court also such as State of Goa vs. Pandurang Mohite, AIR 2009 SC 1066 , State of U.P. vs. Satish, 2005 (3) SCC 114 , Mohibur Rahman & Another vs. State of Assam, 2002 (2) JIC 972 (Supreme Court), Rohtash Kumar vs. State of Haryana, 2013 (82) ACC 401 (SC) (Paragraph 25), Ashok vs. State of Maharashtra, (2015) 4 SCC 393 , Niranjan Panja vs. State of West Bengal, 2010 (6) SCC 525 . 27. The aforesaid theory, if translated into the facts and circumstances of this case and also the evidence on record regarding the last seen together, we find that PW- 2 Lilu is the solitary witness to the fact of last seen together. 28. PW-2 Lilu in his evidence deposes that for a period of about two years and one month before at about 11.00-12.00 in the morning when he alongwith Shamshad was coming to the village they met accused Sattar with Ummed, the son of Momin coming from the village and on his query the accused replied that he was going to the field. Subsequently, he went to Loni and when returned after 6-7 days Momin met him and informed for the missing of his child and then he disclosed the aforesaid fact of last seen together to the informant. 29. The veracity of the testimony of PW-2 Lilu was tested in his cross-examination. When he was controverted to his statement that the accused had told him that he was going to the field he replied that the aforesaid fact was narrated by him to the Investigating Officer of the case but if it was not found in his statement he could not explain the reason thereof. When he was controverted to his statement that the accused had told him that he was going to the field he replied that the aforesaid fact was narrated by him to the Investigating Officer of the case but if it was not found in his statement he could not explain the reason thereof. The learned counsel for the appellant has vehemently submitted that PW-2 is not a natural witness. He is a chance witness who works at Loni and his presence in the village on the day of the occurrence of kidnapping was not natural and probable. Further, his conduct regarding a very delayed disclosure of the factum of ‘last seen together’ before the informant also makes his evidence as suspicious and unreliable. 30. This Court also examined as to what was the time gap between the alleged last seen together and the death of the deceased. 31. It is notable that no date of last seen has been disclosed by PW-2 Lilu in his evidence, albeit he states that about 2 years and 1 month before at about 11.00- 12.00 in the morning he had seen the accused appellant taking the deceased boy Ummed with him. The missing report was lodged on 14.5.2008 whereas the missing was caused on 10.5.2008. Motive 32. In a catena of decisions, it has been settled that motive keeps a significant place and is countenanced in a case based upon circumstantial evidence. 33. While examining the significance of motive in cases based on circumstantial evidence, it was observed by the Hon’ble Apex Court in State of U.P. vs. Kishanpal, (2008) 16 SCC 73 like this : “38……….the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. 39. The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. 26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar vs. State of T.N., (2009) 9 SCC 152 ).” 34. We examined the prosecution evidence to find out the element of motive behind the crime. PW-1, the informant in his evidence has stated that he was having no prior enmity with the accused Sattar or any of his family member, hence, no enmity between the informant and the accused appellant at the time of the incident is inferred from the said statement. There is no other witness on record who may testify the presence of enmity between the appellant and the informant, father of the deceased. In his entire testimony PW-1 nowhere utters a single word in respect of his enmity with the accused appellant. 35. Since the case in hand rests upon the circumstantial evidence, motive plays an important link to complete the chain of circumstances in such a case, though in a case of direct evidence, motive loses its significance. Time of death of the deceased and recovery 36. The dead body of the deceased has been retrieved by the police on the pointing out of the accused appellant Sattar. PW-1 is also a witness of the said recovery. Time of death of the deceased and recovery 36. The dead body of the deceased has been retrieved by the police on the pointing out of the accused appellant Sattar. PW-1 is also a witness of the said recovery. He states that on call of police when he came to the main road from his residence accused Sattar in his presence delivered a statement of disclosure of the dead body of the deceased to the police and when they entered into the sugar-cane field walking behind the accused appellant, he handed over some skeleton and clothes to the police after removing some soil from a pit and in this regard memo Ext. ka-3 was also prepared. He further states that the clothings and jaw alongwith skull were also recovered which he proves as material Ext. 1 to material Ext. 5. The said recovery was made on 16.5.2008. The post mortem of the said skeleton was performed by PW-4 Dr. Pankaj Jain, who found five broken pieces of skull bones, lower jaw having only four teeth, one piece of scapula bone and black hair for autopsy. Since nothing was identifiable, the post mortem report Ext. ka-6 was prepared accordingly, however, subsequently on 27.6.2008 one medical board also performed the post mortem by order of the C.M.O. Ext. ka-8 and report Ext. ka-7 was prepared. PW-4, however, expressed his inability to disclose as to when death of the deceased occurred. 37. In the same manner, PW-7 Dr. V.V. Bhargava, Radiologist also proves x-ray report Ext. ka-17 alongwith x-ray plates material Ext. 6 and 7 and states that the medical board to which he was also a member determined the age of the deceased examining the bones of the skeleton. Hence, the prosecution has further failed to establish the time of the death of the deceased and this fact remains unanswered as to before how much time from the recovery of the dead body, the deceased was seen in the company of the appellant and when his murder was committed. 38. The learned counsel for the appellant vehemently submitted that the said recovery is nothing but a false and fabricated evidence adduced by the prosecution. It is argued that the presence of the informant and witnesses Ali Sher and Imran at the time of the recovery of the skeleton of the deceased is totally false. 38. The learned counsel for the appellant vehemently submitted that the said recovery is nothing but a false and fabricated evidence adduced by the prosecution. It is argued that the presence of the informant and witnesses Ali Sher and Imran at the time of the recovery of the skeleton of the deceased is totally false. The dead body has been recovered from an open space having access to anyone at any time. 39. Learned AGA has submitted that the recovery of the skeleton and cloths on the pointing out of the accused appellant is covered under Section 27 of the Evidence Act but however, he could not satisfy the Court on the point that the recovery has been made from an open place and any person might cause disappearance to the skeleton in the sugar-cane field or might hide it there which creates a mark of suspicion to the story of recovery. Nobody has seen the accused appellant causing disappearance or hiding the body/skeleton of the deceased in the pit. 40. It is submitted by the learned counsel for the appellant that the alleged place of recovery is very near to the chak-road which is a public path surrounded by the fields of other persons. It is further submitted that since the dead body was found in the skeleton form the same must be creating a bad smell which could easily attract any person present nearby and since the place of occurrence was surrounded by the fields and was situated near the chak-road whereupon the presence of public persons was very probable, hence the pit wherein the dead body was concealed should be normally visible to others. In the memo of recovery Ext. ka-3 it has been mentioned that there was spreading a very bad smell of a dead body from the pit, hence, it was very natural that any person might be attracted to that smell. 41. In Jaikam Khan v. State of U.P., (2021) 13 SCC 716 , the Hon’ble Apex Court observed as under: “One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan i.e. the place of incident. 41. In Jaikam Khan v. State of U.P., (2021) 13 SCC 716 , the Hon’ble Apex Court observed as under: “One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan i.e. the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.” 42. Further, the Hon’ble Supreme Court in Nikhil Chandra Mondal v. State of W.B., (2023) 6 SCC 605 has held that : “20. The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra-judicial confession.” 43. Another limb of argument from the learned counsel for the appellant is that it was incumbent upon the prosecution to prove that the recovered incriminating materials were kept in sealed condition in the malkhana of the police station and G.D. thereof was also prepared and when the said articles were produced in the Court, the same were taken from the malkhana of the police station. It is further submitted by the learned counsel for the appellant that no malkhana register has been produced before the Court to show the aforesaid facts. It has been vehemently submitted that considering the aforesaid circumstances it is explicitly clear that the entire story of recovery on the pointing out of the appellant Sattar is a false and concocted story of the police. This, as submitted, is a serious lacuna in the prosecution case and it shatters the link evidence as well. It has been vehemently submitted that considering the aforesaid circumstances it is explicitly clear that the entire story of recovery on the pointing out of the appellant Sattar is a false and concocted story of the police. This, as submitted, is a serious lacuna in the prosecution case and it shatters the link evidence as well. He also placed reliance on the judgment delivered in State of Orissa vs Sitansu Sekhar Kanungo, 2002 SCC OnLine SC 1296 wherein the Hon’ble Apex Court in almost similar matter held that the absence of link evidence in such cases vitiates the prosecution story and accused is entitled to get benefit of that. 44. It is further submitted that PW-5, the Investigating Officer has stated that Ali Sher and Imran were the two public witnesses of the alleged recovery besides the informant but the said witnesses have not been examined by the prosecution. The so-called statement of the accused appellant for the recovery to be made under Section 27 of the Evidence Act has not been recorded in writing by the Investigating Officer. 45. The aforesaid facts hit the prosecution story in respect of recovery of incriminating articles on the pointing out of the accused appellant consequent upon his statement given in the police custody, which was claimed to be admissible under Section 27 of the Evidence Act. 46. Learned trial court has also discussed the oral evidence rendered by the prosecution. PW-1, informant, in his cross-examination states that before 10-15 days of the occurrence marriage of accused appellant Sattar was solemnized and he alongwith his whole family participated in the marriage function and both the families were on friendly relations. Hence, if both the families were having close relations, there was no motive at all for the accused appellant to commit the alleged crime. It is only PW-2 Lilu who disclosed the fact of last seen together before the informant on the basis of which the accused appellant was named before the police. PW-1 in his cross-examination further states that Lilu met him at about 7.30 a.m. and Shamshad met him 15 minutes thereafter and whatsoever they disclosed before him, he narrated the same in the written report. PW-1 in his cross-examination further states that Lilu met him at about 7.30 a.m. and Shamshad met him 15 minutes thereafter and whatsoever they disclosed before him, he narrated the same in the written report. If in the light of the aforesaid statement made by the PW-1, the testimony of PW-2 Lilu is further scrutinized and it is found that just after witnessing the boy going alongwith accused Sattar he left the village and went to Loni for his employment and when he came back 6-7 days after the incident he was informed about the missing of the son of Momin. It is notable that PW-2 himself did not visit the informant after getting the information of the missing child of Momin rather when Momin met him by chance and told the incident of missing of his child it was only then he disclosed the story of ‘last seen together’ to PW-1 Momin and such statement finds place in his examination-in-chief. It is noteworthy that the statement of PW-2 Lilu for his visit to Loni for his employment was nowhere stated in his statement under Section 161 CrPC and he has been cross-examined on this point. Hence, it appears that the statement made by PW-2 Lilu was after thought only. 47. The attention of the Court has also been drawn by the learned counsel for the appellant to a material point that on 16.5.2008 although further information was given by the informant at the police station concerned against the named accused, which has been proved as Ext. ka-2 by PW-1 but no G.D. in connection with the said fact has been proved and PW-3, the scribe, also makes no statement in this regard. Though PW-5 states that G.D. No. 28 at 10.40 a.m. was prepared but the said G.D. was not made part of the record and further not proved in evidence. It has been vehemently argued that Ext. ka-2 was a relevant and significant document and the prosecution failed to explain as to why the said information was not written in any G.D. of the concerned police station. 48. It has been vehemently argued that Ext. ka-2 was a relevant and significant document and the prosecution failed to explain as to why the said information was not written in any G.D. of the concerned police station. 48. It is also submitted that there is no rawangi G.D. on record which was required from the prosecution in order to prove the fact that on 16.5.2008 the police party made an exit from the police station alongwith accused Sattar for recovery of the dead body of the deceased and in the absence of the rawangi G.D. it cannot be said that the police party left the police station, as claimed, and took the accused appellant to the place of recovery. The G.D. Ext. ka-16, which was proved by PW-5, only consists of the statement made by the appellant Sattar in the police custody but it does not relate to the exit of the police party from the police station. Except PW-1, who also deposes some fluctuating statements, no other public witness proved the factum of recovery of the skeleton of the deceased on the pointing out of the appellant. 49. In Rifaqat alias Fakkar vs. State of U.P., 2007 SCC OnLine All 1638 , this Court has held as under : “15……………….It is also worthwhile to mention here that P.W. 1 and P.W. 2 have stated in their testimony that they had proceeded on patrolling duty from their concerned police station and reached at the place of incident. He was apprehended by the police from his house as per suggestion. In such circumstances, it was essential that Rawanagi G.D. of P.W. 1 and P.W. 2 should have been proved on behalf of prosecution, so that it could be proved that they had proceeded from concerned police station and reached at the relevant place of incident. In absence of producing Rawanagi G.D. of these witnesses, the presence of both the witnesses is liable to be suspicious at the place of incident. Therefore, search and seizure has become ultimately suspicious……..” 50. Another limb of argument raised by the learned counsel for the appellant is that the conduct of PW-1, the informant, is very unnatural in this case. The prosecution has put forward a specific case that the son of the informant was missing since 10.5.2008 but missing report Ext. ka-1 was given at the police station concerned only on 14.5.2008. Another limb of argument raised by the learned counsel for the appellant is that the conduct of PW-1, the informant, is very unnatural in this case. The prosecution has put forward a specific case that the son of the informant was missing since 10.5.2008 but missing report Ext. ka-1 was given at the police station concerned only on 14.5.2008. It is never natural and probable that after missing of his son aged about only four years the informant gave information at the police station four days after his missing and moreover no satisfactory explanation has been offered by the prosecution for this inordinate delay. 51. In the light of the aforesaid submissions, we examined the evidence of PW-1 and it emerges out from his statement that since he was busy in search of his son, he could not report to the police station prior to 14.5.2008. The said conduct of PW-1 in this connection was not natural. The missing boy was not a grown-up child but was a little boy of tender age of 4 years only but the police was informed four days after his missing by the informant/father which denotes the unnatural conduct of PW-1 and it appears that the prosecution has tried to conceal the real facts and origin of the case. 52. Another issue which has been raised by the learned counsel for the appellant is that there is one FSL report Ext. ka-18 on record in respect of examination of clothings and skeleton retrieved from the pit on the pointing-out of the accused appellant which reveals that human blood was found on the articles sent for forensic test but it does not connect the present appellant with the crime alleged against him. 53. The learned counsel for the appellant has also laid emphasis upon Ext. kha-1, which is a compromise letter given to the S.H.O. Kotwali, Shamli wherein theft of buggi of the informant Shabbir was committed on 5.1.2008 by the named persons Lilu and Shamshad but subsequently both the persons confessed their guilt before the village people and prayed for admonishing and a compromise deed dated 12.8.2008 was prepared before the police. 54. DW-1 Sabir, the real brother of the accused appellant, in his testimony states that a named report in connection with the aforesaid theft was given at the police station Shamli by Shabbir, father of the accused appellant. 54. DW-1 Sabir, the real brother of the accused appellant, in his testimony states that a named report in connection with the aforesaid theft was given at the police station Shamli by Shabbir, father of the accused appellant. He further proves the compromise deed dated 12.1.2008 as Ext. kha-1. It has been argued by the learned counsel for the appellant that Shabbir son of Tula is the father of the accused appellant Sattar and DW-1 is his real brother. The contents of the aforesaid compromise deed have been corroborated by DW-1. Learned counsel for the appellant on the basis of Ext. kha-1 advanced an argument that on account of old animosity Lilu PW-2 has given false evidence against the accused appellant. It has also been argued that the evidence adduced by the defence also gets the same weight as the prosecution evidence. Reliance has been placed on a decision of the Apex Court in Munshi Prasad vs. State of Bihar, (2002) 1 SCC 351 . Hence, in the entire facts and circumstances of the case, the evidence adduced by the defence helps the accused appellant. 55. On the basis of the aforesaid discussion, we are of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt. Learned trial court though discussed several factors relating to the case but has not scrutinized and appreciated the evidence on record in proper and legal manner and thereby, has accorded a perverse finding of conviction. The chain of the circumstances is never complete, which was essential to record a conviction of an accused in a case based on circumstantial evidence. All the material circumstances, like last seen, motive, recovery of kidnapped boy have not been proved for want of cogent and reliable evidence. The evidence rendered by the prosecution is shaky and not trustworthy. The medical evidence also is of no help to the prosecution. All these lacunas denude the prosecution case and in the aforesaid legal and factual scenario, we have no option but to set-aside the impugned judgment and order and to record acquittal of the appellant. 56. Recently, in Ravi Sharma Vs. The medical evidence also is of no help to the prosecution. All these lacunas denude the prosecution case and in the aforesaid legal and factual scenario, we have no option but to set-aside the impugned judgment and order and to record acquittal of the appellant. 56. Recently, in Ravi Sharma Vs. State (NCT of Delhi), (2022) 8 SCC 53 6, where in the circumstances of the case, the Hon’ble Supreme Court found the last seen theory not to be true, motive was not proved, recovery of firearm was doubtful, material contradictions found in the evidence rendered and no sufficient link to come to the irresistible conclusion pointing guilt only to appellant, it was reiterated that mere suspicion, howsoever strong it may be, cannot be a substitute for acceptable evidence. In the peculiar circumstances of the present case, the aforesaid theory applies to this case as well. 57. Hence, the impugned judgment and order of conviction and sentence, which has been sought to be assailed, calls for and deserves interference. The criminal appeal is liable to be allowed and the same is, accordingly, allowed. 58. The impugned judgement and order dated 16.4.2012 is, accordingly, set aside. The convict-appellant Sattar is accordingly found not guilty for the offence punishable under Section 363 , 302 and 201 IPC . He is acquitted from all the charges. Convict-appellant is on bail. He need not surrender, his bail bonds are cancelled and sureties are discharged. 59. Let a copy of this judgment along with trial court record be sent to the Sessions Judge, Muzaffarnagar for necessary compliance.