Vijai & Another vs State Of U.P.
2018 Latest Caselaw 3938 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 42
 
Case :- CRIMINAL APPEAL No. - 43 of 2006
 
Appellant :- Vijai & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.K. Ojha,Anil Raghav,D.K.Diwan,I.K.Chaturvedi,Noor Mohammad,Pankaj Tripathi,S.K. Tiwari,S.K.Chaudhary,Santosh Choudhry,Sudeep Harkauli
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Suresh Kumar Gupta,J.

(Per Hon'ble Suresh Kumar Gupta,J.)

1. The appellant-accused have preferred Criminal Appeal No. 43/ 2006 under Section 374 (2) of the Code of Criminal Procedure against the judgment and order of conviction and sentence dated 22.11.2005 passed by Sri Ram Preet Dwivedi Additional Sessions Judge, Fast Track Court, Court no. 2, Meerut in Sessions Trial No. 1105 of 2005 in State of U.P. Vs. Vinod alias Julphi and others. Trial Court convicted accused- appellants Vijay, Sunil, Vinod @ Julfi under Section 396 I.P.C. for life imprisonment and fine of Rs. 1,000/- each in default simple imprisonment for one month, under Section 412, seven years rigorous imprisonment and fine of Rs. 1,000/- each in default one month simple imprisonment with the stipulation that all sentences shall run concurrently.

2. The incident is of May 2002 and decision of trial court is rendered on the appeal was preferred in 2006 and the accused are in jail since June, 2002.

3. Brief facts as culled out from record of this case are that on 20.5.2002, while the brother of the complainant was on the way to the bank for depositing money to the extent of Rs. 4,00,000/- and as soon as his car reached and halted before the bank at about 11:30 am the assailant fired at the deceased and ran away with the bag in which the amount was kept. The culprit were three in number and they escaped riding a motorcycle. The deceased Gajendrapal Singh was rushed to the nearby nursing home where he was declared dead.

4. F.I.R was lodged disclosing the above facts and during the course of investigation the accused persons were arrested and on pointing out by the accused Vijay a sum of Rs. 10,000/- out of the plundered amount was recovered. Some amount in cash was also recovered from other accused namely, Vinod and Sunil. During investigation it also transpired that in all five persons were involved in the commission of offence and hence, the case which was initially registered under Section 302/394 Indian Penal Code (hereinafter referred to as I.P.C.) was altered in Section 396/412 I.P.C.

5. The investigation being complete the charge sheet was laid against the present appellants under Section 396, 412 of I.P.C.

6. The case being exclusively triable by the court of session and it was committed by the Magistrate.

7. The Session Court summon the accused, on appearing the accused pleaded not guilty, hence Court framed the charges against the appellants for the commission of the offence under Section 396/ 412 I.P.C. The appellant-accused have not pleaded guilty and claimed to be tried.

8. To prove the case against the appellants the prosecution has examined the following witnesses whose evidence is scrutinized by us and is read before this Court by learned advocate for the appellants and also by learned A.G.A. for the State.

9. The prosecution so as to bring home the charges have examined the follow­ing witnesses:-

I. Amrit Pal Singh - P.W. 1

II. Ripudaman Singh - P.W. 2

III. Brijendra Singh Singhal - C.W. 3

10. The prosecution relied upon the following documentary evidences so as to bring home the charges against the appellant accused.

F.I.R.

20.5.2002

Ex.Ka 2

Written Report

20.5.2002

Ex.Ka 1

Recovery memo of Currency Notes

27.6.2002

Ex.Ka 10

Recovery memo of Currency Notes

21.6.2002

Ex.Ka 12

Recovery memo of Blood Strain and Plain Earth

20.5.2002

Ex. Ka 13

P.M. Report

20.5.2002

Ex. Ka. 7

11. After examining the witness, further statement of the appellant-accused under Section 313 Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution.

12. Heard learned counsel for the appellant, Sri Sudeep Harkauli and learned A.G.A for the State. So as to bring home the charges levelled, the prosecution three witnesses P.W.1 Amit Pal Singh dated 18.10.2004 and 3.11.2004 and Ripudaman Singh dated 8.11.2004 and 9.11.2004 and C.W. 1 Brijendra Singh were examined.

13. It is submitted by Sri Sudeep Harkauli for the appellants:

(I) That even if we consider the evidence of P.W. 2, who is stated to be an eye-witness, the eye-witness has specifically stated that there were three people who had tried to approach his father. Even before this Court when inquired from learned A.G.A. he could not point out whether the empty cartridge were found from the place of occurrence or not.

(II) The incident is said to have occurred in broad day light at about 11:30 A.M in an area where the bank is situated and there the deceased had gone to deposit the amount and where he was shot dead no person or rather any independent eye witness was examined.

14. Learned counsel for the appellant has made several submissions that they were less than five people, and thereafter, Section 396 I.P.C. could not have invoked. He has submitted that the prosecution led evidence of three people but there is absolute voyance in their evidence.

15. While going through the entire record, three things emerge for our consideration:

(I) Whether the death was a homicidal death resulting into murder;

(II) If it was homicidal death, was it coupled with the intention to commit dacoity; and

(III) If both these are proved, whether conviction under Section 396 of IPC of all the accused is justified or not.

16. In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of Andrha Pradesh [Jt 1993 (2) SC 559 : 1993(2) SCC 684]].

17. In this case, as per the factual matrix, which would go to show that the case of the prosecution rests on circumstantial evidence, the circumstance from which an inference of guilt is sought to be drawn, has to be cogently and firmly established. They must be of definite tendency which would point to the guilt of the accused and accused alone, the circumstances which would be taken cumulatively must and must form a chain unbroken and no escapism from the conclusion that the crime was committed by the accused and accused alone. This principle has been enunciated way back by the Apex Court in the case of Padala Veera Reddy v. State of M.P. reported in JT 1989 (4) SC 223.

18. This takes us to the issue whether the offence would be murder, which is an ingredient to be proved before proving that offence committed is an offence under Section 396 IPC.

19. It would be relevant to refer Section 299 as also Section 300 of the Indian Penal Code, which read as under:

"S.299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

"S.300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, -

Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--

First--That the provocation is not sought or voluntarily pro­voked by the offender as an excuse for killing or doing harm to any person.

Secondly --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exer­cise of the powers of such public servant.

Thirdly --That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

20. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused if Courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences and coming to the decision as to whether it was homcidal death.

Section 299

21. Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

22. (a) without the intention of causing

23. death; or

24. (1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

25. (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

26. KNOWLEDGE

27. KNOWLEDGE

28. (c) with the knowledge that the act is likely to cause death.

29. (4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

30. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was premeditated, accused had intention to cause death of deceased, the injuries were sufficient in the ordinary course of nature to have caused death, accused had intention to do away with deceased, hence the instant case would be falling under Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed in this case would fall under Section 300 on the basis of the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which has been also kept in mind.

31. Having held that it was a murder it will have to be seen whether if, there was group of five people of which the three accused were parties and they were the persons who committed the offence as punishable under Section 396 read with Section 412 of the Act.

32. Provisions of Section 396 IPC reads as follows:

"396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

33. This takes us to the question as to whether the accused-appellants have committed offence under Section 412 of the IPC. Section 412 reads as follows:

"412. Dishonestly receiving property stolen in the commission of a dacoity--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

34. The Apex Court in State of Gujarat vs. Aniruddh, AIR 1997 SC 2780, has held that police officials, who were at the place where the accused were nabbed and have witnessed gathering of evidences and if they are found to be trustworthy their evidences will and has to be evaluated as if they were witnesses of the crime. The ocular version of the police officers has not been impinged in cross-examination. The reappraisal of the entire evidence will go to show that this was a cold-blooded murder of three people in their house. The ornaments were recognized by PW1 to be belonging to deceased. PW3 and PW 4 before turning hostile accepted that they were working at the place of the deceased, their signatures have been identified by them on the panchnamas o f recovery.

35. The learned Counsel for the State has relied on the decision of this Court in Criminal Appeal No. 147 of 2003 where in reliance has been placed on the decisions in Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, State Of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and the subsequent decisions of the apex court in R. Shaji vs. State of Kerala, AIR 2013 SC 651, Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57, Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, 2017 (6) JT 381 and the landmark decision in Mukesh and Anr. Vs. State for NCT of Delhi and Others, AIR 2017 SC 2161 and has contended that the recovery cannot be said to be bad and the trial court has not committed any mistake in considering this as a material piece of evidence pointing towards the guilt of the accused as it is discovery of a fact in consequence of information received from the accused. The recoveries were made separately at the instance of the accused.

36. Per contra, the counsel for the State has made the following submissions that he has relied on Soyebhai Yusufbhai Bharania and 3 Others Vs. State of Gujrat and submitted that as recoveries were based on the statement made by the accused and there were nothing which were in the bag of the deceased, the accused cannot be given the benefit of non-holding of T.I.P. as they have been recognized by the eye-witness and during the investigation, he was found that they were five people, who were involved in the said incident, and therefore, he had submitted that the dacoity has been committed.

37. Looking to the totality of the facts and circumstances this is a case of both circumstantial as well as eye-witness account we are unable to persuade ourselves to concur with the view taken by the trial court and we upturn the judgment of the trial court as the accused is not wanted in any other case.

38. The submission of learned A.G.A. that all the documentary evidences have been exhibited with the consent of learned counsel for the respondent accused will not come to the aid of learned A.G.A.

39. The facts as revealed in evidence shows:-

(I ) In the FIR and the evidence of the witnesses it is categorically mentioned that there were three persons. How two persons were named by the police authorities is not explained. This fact goes against the prosecution.

40. We are convinced by the contention advanced by the learned counsel for the accused appellant that it is only the investigating officer who with a view to see that the charge sheet is laid for commission of offence under Section 396 of I.P.C. has named two other people; one is shown to be absconding and other has been acquitted by the trial court against which no appeal has been preferred by the State.

41. Be that as it may, Charanjeet, one of the star witnesses has not been examined.

42. Now, we may go to the recovery part, which according to the learned A.G.A., falls within the purview of Section 27 of the Evidence Act. Further, this recovery which has been exhibited, according to us, is hit by Section 114 of the Evidence Act. So after a period of more than one month this recovery has been made, hence the judgment delivered in the case of Soyebhai Yusufbhai Bharania & 3 others Vs. State of Gujarat, 2013 Law Suit(Guj) 2401 on which reliance has been placed by learned A.G.A. cannot by of any aid to the State.

43. The defective investigation and the lapses which have been committed by the prosecuting agency are writ large. The evidence of witnesses, who could be said to be eye witness, has not been examined rendering entire investigation unreliable and the story of the prosecution becomes totally improbable. We have appreciated the evidence of police personnel about recovery of blood stain and found that there are glaring contradictions between the two evidences led before the trial court.

44. It is an admitted position of fact that there was no identification parade. It is not the case of the prosecution that the accused were known from the beginning to the injured and the witness who have testified Charanjeet Singh, one of the so-called witness, is not produced.

45. The injuries on the accused prove that it was homicidal death but can it be said that the accused were the persons who had perpetrated the crime. Section 396 reads as follows:

"396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

46. Thus, when it is proved that there were less than three people no conviction under Section 396 I.P.C. could have been ordered in view of the decision of the Apex Court in the case of Musheer Khan V. State of U.P. reported in 2010 (2) SCC 74.

"23. Applying these principles, in the facts of the case, the evidence of PW 3 that while driving the scooter A-4 was repeatedly looking back becomes highly doubtful."

47. Recently, the Apex Court reported in 2018 AIJEL SC 62556 held that when any of the weapons used in the commission of the crime has been recovered and no test identification parade is held in cases like the present one, test identification parade acquires a lot of significance and not holding of the same cannot be ignored. In this case, while considering the acceptances, it was nobody case that they knew the accused. The FIR did not name the accused. The person who had witnessed the incident could not even recognized the accused. Name of two additional accused was conspicuously missing it is also an additional factor for us to hold that the accused might have been falsely implicated. In this case the prosecution's case does not bring about circumstantial chain to be complete. There is snap in the circumstantial chain. The recent judgment in Rajiv Vs. State of U.P. (supra) will also not permit us to hold the accused guilty. There is no confessional statement of the accused as held by the trial court and, therefore, the circumstantial evidence brought to us does not complete the chain of circumstances, hence we cannot uphold the conviction of the accused. The conviction under Section 396 I.P.C., therefore, cannot be maintained.

48. The identity of the accused is also susceptible though it was brought to light that the witnesses have stated that they were near the accused which itself cannot be a full proof of recognizing the accused. Though the articles which were recovered were said to be one which were subject matter of the same incident. It is not proved whether they were of same incident. We are supported in our view by the Apex Court in Iqbal Vs. State of U.P. Criminal No. 1663 of 2012 dated 6th May, 2015 and upturn the conviction of the accused.

49. The most important aspect is that the prosecution has been unable to establish the participation of five or more persons nor the identity of other two accused was established. We are directly covered by the judgment of the Apex Court in Manpreet Singh alias Goldee Vs. State of Punjab 2015 (7) SCC 167. Thus, the said judgment will not permit us to uphold the conviction. Recovery in this case cannot be said to be reliable. The objection raised by the defence to the recovery made cannot be sustained but the recovery by itself will be permit us to confirm the judgment.

50. The submission of learned A.G.A. that all the documentary evidences have been exhibited with the consent of learned counsel for the respondent accused will not come to the aid of learned A.G.A.

51. The offence of dacoity is committed when minimum five or more person conjointly commit or attempt to commit a robbery.

52. Hence, when it is proved that there were less than five people the edifice of prosecution story will fall on its ground and therefore, we are unable to persuade ourselves to concur with the learned trial Judge.

53. The accused were not subjected to identification parade and there being identification in the Court room cannot be a basis of proof against them. We are unable to convince ourselves as the learned Trial Court has heavily relied on the deposition of so-called court witnesses no. 1 namely the third witness that there were five persons who were involved in the act. The Police officer has not made any endeavor to state what search he made and stated the other person was absconding.

54. The Apex Court in the State of Gujrat Vs. Kishanbhai and Others (2014) 5 Supreme Court Cases 108 has spoken but the investigating agencies in this case also there is a police witness, who is a police witness, how he came to know that two other persons, who were involved in the commission of the offence is not known or revealed. The reversal of this conviction is not only based on defective/ bad investigation but also on the basis of evidence led.

55. Further in this case, there is glaring omission of total recovery of the money said to be used in the dacoity.

56. The identification of articles also is untrustworthy. Just because the counsel for the accused permitted exhibition of the documents can it be said that they have accepted the contents, the answer is no. As per the provisions of Indian Evidence Act, the contents had to be proved against whom the charge was framed. The money recovered from the accused was different sum then that which they had said to be looted or made part of the dacoity. Similar is the case of State of Gujrat Vs. Kishanbhai and Others (2014) 5 Supreme Court Cases 108. Further reference in Criminal Appeal No. 180 of 1983 is one of us Hon'ble Justice K.J. Thaker was a signatory where it is held:-

"We have carefully examined all materials on records. There are far too many discrepancies in the evidence of prosecution. An attempt to manufacture the evidence is palpable. We believe that the genesis of case is different and is not compatible with the prosecution story and prosecution evidence. We have noticed an attempt to withhold the independent evidence. Stated incident allegedly occurred in the presence of several independent persons and yet no independent witness has been produced and that the alleged prosecution witnesses have not satisfactorily supported the basic contours of prosecution story. In view of aforesaid discussion, we find this to be a case where a reasonable doubt arises as to the guilt of the appellants."

This is a similar case, and therefore, also similar treatment will have to be given, the facts go to show that the offence is not made out. The prosecution hinges on one eye-witness and circumstantial evidence, there is no T.I.P. identification of the appeallant, so in the Court after a considerable period of time, there was no finger print evidence, no recovery of blood stain clothes, the money of the deceased also not recovered and above all the recovery of stolen property allegedly recovered from the appellants and hit by Section 114 of the Evidence Act. There is a snap in the circumstantial chain, and thereafter, also the conviction cannot be sustained as the circumstantial chain have to be in an aggregated manner and collectively. This has not been proved by the prosecution by leading cogent evidence.

"In the totality of the facts and circumstances what emerges that it is case of circumstantial evidence. The two circumstances  which point finger at the accused are the recovery at his behest but the said recovery is from the house belonging to the prosecution witnesses also and was from a known place, known to all and, therefore, the decision in State of U.P. Vs. Sunil (supra), will come to the aid of accused. There is now a snap in the chain namely the time during which the death occurred and the accused had already come back home. It was after his coming back that the death occurred as per Doctor's version".

After hearing the learned counsel for the parties and after going through the records of this matter, including the evidence, as analyzed by the Trial Court, it appears that the case in hand is totally dependent upon the circumstantial evidence. We have examined the evidence led in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused. Accordingly, in our opinion, the Trial Court has erred in law. In our opinion, the arguments which have been put forward in the matter by learned counsel for appellant, are much more acceptable in the facts and circumstances of this case. The findings recorded by the Trial Court are perverse, erroneous and cannot stand the scrutiny of law and do not command for affirmation. Thus, we do not have any hesitation to hold that the lower Court has erroneously come to the conclusions with the reasons given therefore.

57. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellant cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellant deserves to be acquitted.

58. We are convinced that there has been a very shoddy investigation and the trial was conduced by the public prosecutor in a very casual manner.

59. The facts are established, which were consistent with the hypothesis of the guilt of accused and that the circumstances complete the chain and point at the fingers towards these accused-appellants and the persons, who had accompanied them but have fled away. The chain of evidence does not show that they were in any way not connected or were innocent and, therefore, we conclude that even their explanations under Section 313 Cr.P.C. does not leave any ground of doubt that they were persons who were not associated with this crime. The bloodstained Winchester was also recovered from one of the accused-appellants. Hence, there is cogent evidence and no different view than that taken by the court below requires to be taken by this Court. Further a reference to Section 8 and 27 of the Evidence Act would fortify our view as it has been held that a simplicitor circumstances, namely, "an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within purview of Section 27 of IPC1860 Section 302 (para 23)" Pankaj vs. State of Rajasthan, AIR 2016 SC 4150.

60. In the final analysis, the evidence of the witness who were present and who have testified will be more important if the evidence is qualitative in nature. We have to see the quality of evidence and not the quantity. In this case, it is an admitted position of fact that on the basis of the circumstances and subsequent facts, independent source of information, the chain is not completed to prove that accused with other person were responsible for murder and loot, which is dacoity as defined in Section 396 of IPC.

61. In Amar Nath Jha Versus Nand Kishore Singh and Others reported in (2018) 9 Supreme court Cases 137, the Apex Court has reiterated that that non-conduct of test identification parade may not itself be fatal to the prosecution case but it must be viewed by the courts while considering the facts and circumstances of each case. The importance of Section 9 of the Evidence Act, 1872, also plays an important role in this case. In this case also non reporting of two other accused which is essential fact will also prove fatal to the prosecution. It has come out in the cross-examination of the Court witness that no one had discloses the name of other two accused whom he has arrayed in the charge-sheet. An additional factor is that name of two accused have been missing and this will also by an essential fact and points out during the faulty investigation.

62. In the result, the appeal succeeds the conviction rendered by the trial court in Sessions Trial No. 1105 of 2005, is set aside.

63. The accused, who is in jail, has not preferred the bail as there is no evidence against him and he shall be given the benefit of this judgment, he be set free forthwith, if not required in any other matter.

64. We are thankful to Sri Sudeep Harkauli, learned counsel for the appellant and learned A.G.A. for the State for their assistance that the matter which is pending since 2006, is disposed of.

Order Date:- 26.11.2018

Nadeem Ahmad /Vibha Singh