Mohd. Sabir & Anil Khanna vs State (Nct Of Delhi)
2001 Latest Caselaw 790 Del

ORDER

Mahmood Ali Khan, J.

1. These three appeals, one filed by Mohd. Sabir and Anil Khanna jointly and the other two appeals filed individually by Lakhpat Singh and Faryad Ali are directed against an order of Addl. Sessions Judge, Delhi dated 18.9.1996 by which he has convicted these appellants for committing offence under Section 302 read with 34 IPC and has sentenced each of them to undergo life imprisonment and to pay a fine of Rs.4,000/- each and in default to undergo further rigourous imprisonment for a period of 12 months. The appellants Faryad Ali and Mohammad Sabir were, however, acquitted of the charge under Section 27 of Arms Act.

2. The facts, as disclosed in the FIR and the evidence led by the prosecution, are that on 22.8.1994 at about 8.45 AM a wireless message was received from the PCR that the body of a man was lying near Gokalpur graveyard near fly over. A D.D.No. 7 Ex.PW-5/A was recorded. No police officer was present in the police station so the copy of the D.D. was immediately sent to SI Ramesh Chand through a Constable Shyamvir Singh. On the way SI Ramesh Chand met SI Ajaib Singh and he entrusted him the copy of the D.D. SI Ajaib Singh reached a vacant piece of DDA land near the graveyard in Kabir Nagar where he found a dead body of a man sprawled on the ground which had incised injuries on his neck, face and left shoulder. Nobody was present there to identify the deceased or give evidence about the manner in which the crime was committed. SI Ajaib Singh recorded his note Ex.PW-12/A on the copy of the D.D.No.7 and sent it to the police station for registration of a case under section 302 IPC. FIR Ex.PW-12/B was thereupon registered at the police station at 10.30 AM. SI Ajaib Singh picked up the sample of the blood, sample of blood soaked earth and the earth control and preserved it under sealed parcels. He also called the dog squad and the police photographer. The dog squad could not lead to any clue. After conducting inquest, the body was then sent to G.T.B. hospital mortuary.

3. In the afternoon one Abdul Wahid PW-1 met SI Ajaib Singh and he identified the body as of his younger brother Abdul Kalim. In the evening at about 7.00 or 8.00 PM the I.O. allegedly recorded the statements of Abdul Wahid PW-1 and Ms. Muniran PW-2, who is the mother of the deceased, under Section 161 Cr.P.C. Both these statements were identical. It was stated that on 21.8.1994 both these persons and the deceased Abdul Kalim were at home when at 7.00 PM all the four appellants came and took away Abdul Kalim saying that they had some account to settle with him and he would be back soon. Abdul Kalim did not return till mid-night so both these witnesses Abdul Wahid and Muniran PW-1 & PW-2 went to the houses of these appellants where the mothers of these appellants told that they had not come back home. In the morning Abdul Wahid went out searching for his brother Abdul Kalim and ultimately reached the police station. There he was told about the recovery of a dead body which had been kept in G.T.B. Hospital. He proceeded to the hospital and identified the body of Abdul Kalim. He came back and informed his mother and other relatives. After the post-mortem examination conducted on the body on 23.8.1994 the body was handed over to the father and elder brother of the deceased.

4. The prosecution story further goes on to state that on 10.11.1994 appellant Faryad Ali and Mohd. Sabir Ali were arrested by the police. Their disclosure statements were recorded. They admitted the commission of the offence of murder of Abdul Kalim in complicity with the other two appellants and offered to get the weapon of offence, razor and a 'chhura' recovered. On 11.11.1994 the other two appellants Lakhpat Singh and Anil Khanna were arrested. They were interrogated and they also made disclosure statements. The four appellants led the I.O. SI Ajaib Singh along with witness Rajender Singh PW-3 and Const. Laxmi Narain PW13 and other staff Const. Sumer Singh etc. to the DDA land near the scene of occurrence where appellant Faryad Ali got a razor Ex.P-1 recovered and appellant Mohd. Sabir got a 'chhura' Ex.P-2 recovered. Appellant Lakhpat got a pair of shoes of brown colour allegedly belonging to the deceased recovered from the side of the wall of that land. Appellant Anil Khanna on the other hand simply pointed at the place where the occurrence had taken place. The recovery memos were prepared and the weapons and the pair of shoes were kept in separate sealed parcels. The photographer was also called to the place of recovery who had taken the photographs.

5. Further investigation was completed and the challan was then filed for the trial of all the appellants under Section 302 read with Section 34 IPC and also for trial of the appellants Faryad Ali and Mohd. Sabir for offence under Section 27 of the Arms Act. The learned Addl. Sessions Judge convicted the appellants and sentenced them under Section 302/34 IPC by passing the impugned order as mentioned in para-1. The appellants have felt aggrieved and have filed these appeals.

6. There is no dispute that the dead body recovered from the DDA land adjacent to the graveyard near Gokalpur fly-over on 22.8.1994 was of Abdul Kalim. The body was duly identified by PW-5 Habibullah, father and Abdul Majid PW-4, elder brother of Abdul Kalim at the time of post-mortem on 23.8.1994. PW-1 Abdul Wahid, elder brother and PW-2 Ms. Muniran, mother have also deposed about the dead body recovered by the police being of Abdul Kalim. There is no challenge to this evidence from the side of the appellants.

7. Abdul Kalim met a homicidal death. It is proved by the inquest proceedings conducted by the I.O. SI Ajaib Singh PW-18 which is Ex.PW-18/D. The post-mortem report of the body of Abdul Kalim is Ex.PW-19/A. It is proved by the autopsy surgeon Dr.KK. Banerjee PW-19. The autopsy surgeon has found following antemortem injuries on the face, shoulder and the neck of the body:

Ante-mortem Injuries

1. Elliptical shaped clean cut margin acute angles 1.5 c.m. x 0.5 c.m. x subcutaneous tissue deeps incised would present in front and outer aspect of left shoulder 2.5 c.,. below the tip of shoulder and 25.5 c.m. above left lateral epicondyle placed horizontally.

2. An elliptical shaped clean cut margins acute angles 1.5 c.m. x 0.5 c.m. x subcutaneous tissue deep incised wound 4 c.m. medial to injury No.1 in front and lateral aspect of left shoulder 6.5 c.m. above the anterior auxillary fold and 3 c.m. below the upper hoder of left shoulder placed horizontally.

3. A linear shaped incised wound with clean cut margins 2.5 x 0.2 x subcutaneous tissues deep joining injury no.1 and 2 present in front of left shoulder placed horizontally.

4. Abrasion reddish in colour 1.5 x 0.5 c.m. present on the tip of left shoulder.

5. Abrasion reddish colour 2.5 x 1 c.m. present 1.6 c.m. medial to injury no.4 in front of left shoulder.

6. An elliptical shaped incised wound with clean margins and acute angles 2 c.m. x 1.6 c.m. x muscle deep present at the back of left shoulder placed traversally 4 c.m. lateral to injury no.1.

7. A linear shaped incised wound 6 x 1.5 c.m. x muscle deep present on left side of face, the medical end of the wound starting from left angle of mouth and the lateral and being 4 cm in front of tragus of left ear 4.5 c.m. above the left border of mandible and 2.5 c.m. below the left lower eyelid with extravastion of blood in the adjoining tissue placed horizontally and little upwards towards the left side of face.

8. A linear shaped incised wound 4 c.m. x 1.5 c.m. x muscle deep and soft tissue deep on the right side of face, the medial end of wound starting from right angle of mouth and the outer and being 6.5 c.m. in front of tragus of right ear 3 cm above the right border of mandible and 4 cm below the right lower eyelid. Placed horizontally and little upwards towards the head with extravasation of blood in the depth and surrounding area of the wound.

9. A linear shaped incised wound 3 x 0.5 cm x cartilage deep present on the outer margin of left ear going parallel to antihelix of lower 1/3 of left ear placed vertically.

Injuries over the neck after full extension:

10. A clean cut transversely placed incised would 10 c.m. x 1.5 c.m. x muscle deep placed in front of neck above the thyroid cartilage 2 cm below the tip of chin starting 4 cm to the left of midline and going up to 5.5 c.m. to the right side of neck cutting across the underlying muscles.

11. A clear cut transversely placed incised wound 18 cm x 7 cm x varying depth from back to the front of neck placed on the right side of neck. Starting 6 cm below the occipital protuberance at the back of neck and terminating on the mid line in front of neck. The depth of the wound is 4 cm on the back of the neck, 3.5 cm on the right side of neck just below the right angle of mandible, 2 cm in front of the neck on and below the thyroid cartilage. In its entire course the wound has cut across the underlying soft tissues including the muscles, nerves cartrid artery jugular vein and on the right lateral aspect it is reaching up to the paravertivral muscles of the neck with extravasation of blood in the underlying tissues".

8. According to the report the time since death was about one and a half day which comes to approx. 2.00 AM in the night between 21.8.1994 and 22.8.1994 since post-mortem was conducted between 2.00 PM and 3.30 PM on 23.8.1994. According to Dr.K.K.Banerjee the cause of death was shock as a result of haemorrhage due to extensive antemortem injuries to the neck structures likely to be produced by the sharp-edged weapon. In his opinion injury No. 11 was sufficient to cause death in ordinary course of nature. He was shown the razor Ex.P-1 and the 'chhura' Ex.P-2 in the court and he stated that except injuries No. 4, 5 & 11 other incised injuries are possible by razor Ex.P-1 and injury No.11 is possible by 'chhura' Ex.P-2. In the cross-examination he has stated that Ex.P-1 & P-2, the razor and the 'chhura' were not shown to him before, therefore, he did not prepare the diagram. The autopsy report Ex.PW-19/A coupled with the inquest report Ex.PW-18/D and the oral evidence of Dr.Banerjee, proved that Abdul Kalim has met a homicidal death.

9. There is no ocular evidence supporting the prosecution case. The prosecution, however, has tried to lead circumstantial evidence to prove the guilt of the appellants in the commission of the offence of murder of Abdul Kalim. The learned Addl. Sessions Judge after examining the evidence held that the prosecution has succeeded in proving beyond reasonable doubts the following circumstances:-

1. The appellants had taken the deceased Abdul Kalim from his house on 21.8.1994 at 7.00 PM and the testimony of Abdul Wahid PW-1 and Ms. Muniran PW-2 was trustworthy and as such, the deceased was last seen in the company of the appellants.

2. Abdul Wahid PW-1 and Muniran PW-2 went in search for Abdul Kalim to the houses of he appellants where they were informed that the appellants have not come back from the evening.

3. The body of Abdul Kalim was found on 22.8.1994 in the morning and an information was received at the police station at about 8.45 AM.

4. IO Ajaib Singh PW-18 sent the body to the mortuary and it was identified by Abdul Wahid, Muniran, Abdul Majid and Habibullah, PW-1, 2, 4 & 5 respectively.

5. The appellants absconded from their houses immediately and they avoided their arrest since 21/22/.8.1994 and they could be arrested only on or after 10.11.1994.

6. The appellants after their arrest made disclosure statements as a consequence of which the razor Ex.P-1, the chhura Ex.P-2 and the pair of shows Ex.PW-3/1&2 which were connected with the offence were recovered at their instance.

7. During autopsy the body of Abdul Kalim was found having found the injuries were possible by razor Ex.P-1 and the knife Ex.P-2 and injury No.11 was sufficient in the ordinary course of nature. The learned Addl. Sessions Judge held that all these chain of circumstances proved that the appellants alone have committed the offence of murder charged with.

10. Mr. Mohd. Sajid amices Curaie for three appellants Faryad Ali, Mohd. Sabir and Anil Khanna has assailed the judgment of the learned Addl. Sessions Judge and has submitted that the prosecution has examined evidence of interested witnesses and it has miserably failed to bring home the guilt of the appellants. He has submitted that the case is made up and fabricated by the I.O. when the appellants could not grease his palms as desired by him. He prayed that the prosecution evidence about last seen evidence, recovery of incriminating facts and weapon is absolutely unreliable. He has further argued that the learned Addl. Sessions Judge has not discussed the evidence produced by the appellants in their defense and has based his finding on surmises and conjectures. Mr. Rajesh Mahajan, amices Curaie for the appellant Lakhpat Singh was more specific and he argued that the prosecution has miserably failed to prove the last seen circumstance, the circumstance that the appellants had absconded and were not available after the dead body of Abdul Kalim was found and that the pair of shoes Ex.P-3/1&2 was recovered as a consequence of the disclosure statement made by appellant Lakhpat Singh in accordance with Section 27 of the Evidence Act. He has further contended that the prosecution has not led any evidence to prove that the shoes PW-3/1&2 belonged to the deceased and he was wearing it at the time of the incident. He has also argued that the charge is vague as much as the date of the commission of offence of murder given in the charge is indefinite and not specific so the trial itself is vitiated.

11. Before adverting to the rival contentions raised at the bar be it noted that entire prosecution case hinges on circumstantial evidence. The prosecution has examined 18 witnesses in all but none of them is an eye witness of the occurrence. The prosecution has sought its case to be founded on the basis of circumstantial evidence in the form of the accused being last seen with the victim i.e. deceased Abdul Kalim and recovery of weapon of offence Ext.P-1 razor and Ext.P-2 'chhura' as a consequence of disclosure statement made by appellants Faryad Ali and Mohammad Sabir and recovery of a pair of shoes at the behest of appellant Lakhpat Singh. The prosecution case based on circumstantial evidence may succeed if the complete cain of events is proved so as not to leave any doubt that the murder has been committed only by the appellants and no other person. The following conditions must be fulfillled before a case against an accused can be said to be fully established on circumstantial evidence.:

1. the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,

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.

(See Sharad Birdhichand Sarda Vs State of Maharshtra (1984) 4 SCC 116)

12. Let us now examine the various circumstances applying the above principles of law to the prosecution case. It is pertinent to note that the whole of the last seen evidence, which is most crucial for the success of the case, comprised of the statement of PW-1 Abdul Wahid and PW-2 Ms. Muniran. The learned counsel for the appellants have pointed to a number of material contradictions in the statements of these two witnesses and the I.O. and have urged that these two witnesses have been introduced by the I.O. subsequently after the appellants were arrested on 10.11.1994 and 11.11.1994 as it is a blind murder case. PW-1 Abdul Wahid is the elder brother of deceased Abdul Kalim. His statement is that at 7.00 PM on 21.8.1994 when his mother deceased Abdul Kalim and he were at home these appellants, who were known to them for the past 10 or 12 years, came and took away Abdul Kalim with them saying that he was required for settlement of some accounts and would be back soon. According to him Abdul Kalim did not return and at about 12 O'clock in the mid-night he and his mother Muniran took a round of the house of the four appellants but they were not present and their mothers informed them that the appellants had not come back since evening. On the following day in the morning at 8 O'clock his mother and he both again went to the houses of the appellants but got the same reply. At about 10.00 or 12.00 O'clock he then went to the police station where he came to know that a dead body of a man had been recovered by the police. He went to G.T.B. Hospital where the dead body was kept and found that it was his brother's body. In the cross-examination he stated that after staying at G.T.B. Hospital for sometime he came back home and informed the relatives. The police came to their house and took them to the police station again at about 8.00 PM. At that time the police also enquired as to who could be suspected for the crime in their eyes and that they told that they had suspicion on four persons. Both his mother and he saw the body of Abdul Kalim in the hospital at about 7.00 PM on 22.8.1994. The body was delivered to them for cremation on 23.8.1994. His father and brother went to the hospital on the day of post-mortem. His brother Abdul Majid PW-4 did not know about the persons upon whom he and his mother had suspicion. He had given the name of all the four suspected persons to the police during his interrogation at about 8.00 PM on 22.8.1994. He told the police that he and his mother had gone to the house of the appellants on 21.8.1994 at about 8.00 PM, 10.00 PM and 12.00 O'clock in the night and at about 8.00 AM on 22.8.1994. Abdul Kalim was wearing a T-shirt, a white colour vest and a pair of white socks. He was wearing brown shoes. His T-shirt was not on his body when it was found. It was recovered from a barber's shop. Abdul Kalim was facing trial in four or five criminal cases. He did not know if he was a B.C. of that area. He admitted as correct that the police had interrogated about 60 to 70 persons in connection with this occurrence and one of those who were interrogated in August, 1994 was Mohd. Sabir but he was let off. He, however, denied that other three appellants were also interrogated by the police in August, 1994. He denied that the appellants had not come to his house and had not taken away Abdul Kalim along with them and that the prosecution case was concocted and false.

13. PW-2 Ms. Muniran has stated that Abdul Kalim was her son. On the eve of Raksha Bandhan in 1994 at about 7.00 PM Abdul Wahid, Abdul Kalim and she were in the house when the four appellants came and took away Abdul Kalim along with them and on her enquiry the appellants had assured that he would be back soon and that he was being taken for some settlement of account. Abdul Kalim did not return till about 10.00 or 11.00 PM. She along with Abdul Wahid went to the houses of appellants where they were told that the appellants were not in there and that there was nothing to worry about. Abdul Wahid and she again went to the houses of the appellants at about 9.00 AM next day. The mothers of the appellants again gave the same reply. At about 12.00 noon Abdul Wahid went to the police station to make enquiry about Abdul Kalim and that he informed them that the police had recovered a deed body and that the dead body was of Abdul Kalim. In the cross-examination she has stated that the police had interrogated her at about 4.00 or 5.00 PM on the next day at her house. The police had also made inquiry in the locality. Police had also interrogated Abdul Wahid PW-1. She told the police that she had gone to the houses of the appellants at 10.00 or 11.00 PM and also on the next day in the morning and was confronted with her statement recorded under Section 161 Cr.P.C., Ex.PW-2/DA where it was not so recorded. Abdul Kalim was facing trial in one case. She did not know whether he was a B.C. of the area. She denied that she was making false allegations and had falsely implicated the appellants. She knew all the appellants for the last about 10 or 11 years. She saw the appellants three months after the incident when they were arrested. She did not know whether appellant Anil Khanna had attended the cremation of Abdul Kalim. She herself did not go for attending cremation. Abdul Kalim was wearing a white vest and his shirt was on his shoulder when he left. The shirt was found at the barber's shop. Abdul Kalim was wearing black karata shoes when he left with the appellants.

14. The I.O. Ajaib Singh is PW-18. He stated that after the copy of the D.D., PW-8/A was handed over to him, he went to the DDA land near graveyard and found the dead body with injuries. The body had a white colour vest and underwear, white colour socks and the pants on it. No witness was available and the body could not be identified. He got the formal FIR Ex.PW-12/B registered at the police station. He also summoned crime team and the photographs of the scene of crime were taken. He also prepared the site plan and picked up blood earth control etc. and sealed them in separate parcels and also took them in his possession vide memo Ex.PW-5/A. He conducted inquest proceeding Ex.PW-18/B, wrote brief facts of the case Ex.PW-18/C and filled in death report form Ex.PW-18/D. The body was identified at the mortuary vide memos Ex.PW-4/A and PW-5/A. Post-mortem was conducted on the body. The sealed parcels and the sample seal and the clothes of the deceased were taken into possession vide memo Ex.PW-7/A. He recorded the statement of the PWs correctly. On 10.11.1994 he arrested the appellants Mohd. Sabir and Faryad Ali and had interrogated them. During interrogation Faryad Ali made his disclosure statement Ex.PW-11/D and offered to recover the razor from a ditch. He led them to the ditch and recovered the razor Ex.P-1. The measurement of the razor was taken and its sketch Ex.PW17/E was prepared. It was put in a sealed parcel and was taken into possession vide memo PW-17/A. Appellants Mohd. Sabir was also interrogated. Likewise, he also made a disclosure statement Ex.PW-11/C offering to get 'chhura' recovered from that place. He pointed to the place and the 'chhura' Ex.P-2 was recovered, measurement of which was taken and sketch Ex.PW17/D was prepared. The 'chhura' was also put in a sealed parcel and was taken into possession Ex.PW-17/B. He further stated that on 11.11.1994 the other appellants Anil Khanna and Lakhpat Singh were arrested. Both of them made disclosure statements during interrogation. Appellant Lakhpat Singh made disclosure statement Ex.PW-18/G and the offered to point out the place from near the wall at the place of occurrence where the pair of shoes of the deceased was lying. He thereafter got the pair of shoes recovered vide memo Ex.PW-14/C. Appellant Anil Khanna during interrogation had also made a disclosure statement which is marked as PW-18/H but nothing was recovered as a consequence of his disclosure statement. However, memo of his pointing out of the place of occurrence was marked as Ex.PW-17/F. He also got the place from where the recovery was effected photographed. The case property was deposited in the malkhana. He identified the pair of shoes Ex.PW-3/1&2 as having been recovered at the instance of appellant Lakhpat Singh. In the cross-examination he stated that he reached the DDA park on 22.8.1994 at about 9.40 PM. It was an open land and anybody could have entered or passed through it. He stayed there up to 12.00 noon. He also called the dog squad which came at 11.30 AM. The dog had taken a round of the park. He did not remember at what time the dog squad and the photographers had departed. He again came back to the park at about 1.00 PM and conducted the inquest proceeding. The body was sent to the hospital at 2.00 PM. At about 4.00. PM on 21.8.1994 Abdul Wahid PW-1 came to the police station. He took him tot he mortuary of G.T.B. Hospital where Abdul Wahid identified the dead body. He recorded his statement on the same day. He went to the house of Ms. Muniran on 21.8.1994 and he recorded her statement in the morning but did not remember the time. He came to know the names of all the culprits on 21.8.1994 after the dead body was identified by Abdul Wahid PW-1. He denied that he had interrogated 60 or 70 persons or that he had let off all those who had paid him money and the appellants who could not pay the money were falsely roped in this case. He did not seize the shirt of Abdul Kalim from the barber's shop. Abdul Kalim was a B.C. of the police station. He supplied the inquest papers to the doctor on 21.8.1994 at 3.00 PM. He did not name the appellants as the accused in those papers. He also did not mention it in the inquest report and that he did not tell the doctor that the deceased had left his house at 5.00 PM. He admitted as correct that till 23.8.1994 he had not mentioned the name of any of the appellants as accused in any of the papers made by him and he had everywhere mentioned that the crime was committed by an un-known person. He was put a question by the court as to whether he had come to know the name of the accused prior to 23.8.1994 from the interrogation of PW-1 Abdul Wahid and Ms. Muniran PW-2 and if he had come to know about their names, as to why he had not mentioned them in any of the documents or the case diary till 23.8.1994. In answer he has stated that he did come to know the name of the appellants as the perpetrator of the crime and that Abdul Kalim left his house in their company as per the statement of Abdul Wahid PW-1 recorded on 21.8.1994 and Ms. Muniran PW-2 recorded on 22.8.1994, therefore, he mentioned this fact in case diary but did not mention it in the inquest report and that in the inquest report he mentioned that an unknown man had killed the man. He could not give any explanation for it. He denied that he had falsely implicated the appellants.

15. According to I.O. on 10.11.1994 he along with Const. Sumer Singh and Hari Kishan left the P.S. at about 1.00 PM and went to Gas Agency Gokal Puri. Abdul Wahid met them on the way. They remained there up to 4.00 PM. Documents were written while sitting on a bench at the bus stop. Nobody had signed them because only accused were arrested there. He recorded the statement of Const. Hari Kishan and Const. Sumer Singh at the bus stop. The disclosure statements were recorded at the bus stop and they were got signed by Const. Hari Kishan and Const. Sumer Singh. He denied that the appellants Mohd. Sabir and Faryad were picked up from their houses. He did not receive any telegram complaining about their lifting. He denied that Abdul Wahid, Const. Sumer Singh and Const. Hari Kishan had not signed the documents at the bus stand and that he got their signatures at the police station or that they had not accompanied him to the bus stop. Appellants Faryad and Mohd. Sabir and two other appellants were produced by him before the trial court on 12.11.1994 and thereafter they were taken to the place of recovery. He could not take the appellants Faryad and Mohd. Sabir to the place of recovery on 11.11.1994. He denied that the appellant Lakhpat Singh and Anil Khanna were also arrested prior to 10.11.1994 but they were intentionally not produced before the court. After 12.11.1994 none of the appellants was taken to the place of occurrence. On 11.11.1994 he left the police station at about 4.00 PM along with Const. Laxmi Narayan and went to Welcome Janta Colony. He went to the house of appellant Mohd. Sabir. He wrote the papers concerning Anil Khanna and Lakhpat Singh in the police station. He denied that he had illegally detained them in the police station since 7/8-11.1994 and falsely implicated them in this case later on. He denied that all the papers were made in the police station.

16. In his further statement the I.O. has stated that on 12.11.1994 at 7.00 A.M. all the four appellants along with Const. Lakhpat Singh and Const. Sumer Singh were taken to the place of recovery. They went in two hired three-wheelar scooters. Const. Laxmi Narayan was sitting with appellant Mohd. Sabir and Faryad in one vehicle and the other appellants were sitting in the other auto-rikshaw. He stayed in the DDA park till 11.00 AM. He denied that the razor, 'chhura' and the shoes were already in his possession on 21.8.1994 and that he falsely planted these articles on the appellants. The pair of shoes were found at a distance of about 100 yards from dead body. The razor and 'chhura' were at a distance of about 50 yards. The writing work was done in the DDA park itself. Some papers were written by him while some other were written by Const. Hari Kishan. He denied that no recovery was made at the behest of the appellants. It was denied that the photographs of the appellants were taken forcibly. Abdul Wahid PW-1 used to meet him after 21.8.1994. He also met him on 22.8.1994, 23.8.1994 and 10.11.1994. He had been meeting him all through this period. He did not record his statement. He denied that he had not conducted the investigation properly and he had falsely implicated the appellants by planting the recovered articles on them.

17. A close scrutiny of the statement of I.O. SI Ajaib Singh, PW-18, has revealed some patent infirmities. In the cross-examination he has stated that he went to the house of Ms. Muniran PW-2 on 21.8.1994 and met her there and that he recorded her statement on 22.8.1994 in the morning though he did not remember the time. It is further stated by him that he came to know the names of all the persons who had committed the murder of Abdul Kalim on 21.8.1994 when the dead body was identified by PW-1 Abdul Wahid. It is further stated in the answer to the court question that he had recorded the statement of PW-1 abdul Wahid on 21.8.1994 and had recorded the statement of Ms. Muniran PW-2 on 22.8.1994. The dead body was recovered from the DDA park adjacent to graveyard at 8.30 AM on 22.8.1994. Since it was not identified, it was sent to the hospital at about 2.00 PM. The I.O. has stated elsewhere that he went to the house of PW-1 Abdul Wahid in the evening at about 8.00 PM when the latter had disclosed the names of the appellants as suspects for committing the murder of Abdul Kalim. The I.O., therefore, could not have gone to the house of PW-1 Abdul Wahid and PW-2 Ms. Muniran on 21.8.1994 and could not have come to know names of the appellants as suspects then. He could have also not recorded the statement of PW-2 Ms. Muniran in the morning on 22.8.1994 because till the body was sent to the hospital in the afternoon on that day, it had not been identified. Anyhow, reading the statement of this witness as a whole it appears that he had referred to the date of 21.8.1994 inadvertently in place of 22.8.1994 and his statement that he recorded the statement of PW-2 Ms. Muniran in the morning of 22.8.1994 was perhaps in the morning of 23.8.1994. His statement further indicates that although he came to know about the name of the appellants as suspects who committed the murder of Abdul Kalim but he did not mention this fact in any of the papers prepared by him on 22.8.1994 and 23.8.1994. In this context it is important to note that the inquest proceeding were recorded by him on 22.8.1994 at the place where the dead body was found It is Ex. PW-18/D. In column No.4 'the name, parentage and address of two or more persons who identified the body as that of the deceased persons named in the report' are to be mentioned and the names of Habibullah and Abdul Majid have been written there by the I.O. But in the next column No. 5 where the name, parentage, address of residence and condition in life of the deceased is mentioned he has written "Not Known". This report is dated 22.8.1994. The I.O. has admitted that the dead body was identified by Habibulah and Abdul Majid, father and brother of the deceased, on 23.8.1994. The statement of Habibullah about identification of the body at the mortuary on 23.8.1994 is Ex.PW-5/A and similar statement dated 23.8.1994 of Abdul Majid is Ex. PW-4/A. The prosecution has not been able to reconcile this contradiction in the inquest report. It seems that the names and addresses of Habibullah and Abdul Majid as the persons who identified the dead body had been written subsequently by making interpolation in the report.

18. Our attention is also drawn to the letter of request for post-mortem prepared by the I.O. in which I.O. Ajaib Singh on 23.8.1994 had again mentioned the name of Habibullah and Abdul Majid as the persons who were relative of the deceased and who had identified his body. In short summary of the case he has simply mentioned about D.D.No. 7 dated 22.8.1994 and has written that on receipt of this D.D. he went tot eh graveyard near DDA land in Kabir Nagar and had found a dead body of an unknown person lying on the ground which had incised wound on his neck, on his face and some other place and that the said man had been murdered by some unknown person. According to I.O. Ajaib Singh he came to know of the names of the accused persons on 22.8.1994 when he had recorded the statement of PW-1 Abdul Wahid and Ms. Muniran PW-2 and they had disclosed the names of all the appellants as the persons who had taken the deceased with them on the previous evening. Still he chose not to write their names in the papers for which there is no plausible explanation.

19. Not only this in the post-mortem examination report Ex.PW-19/A in the space which is meant for writing the brief history of the case as per inquest papers, it is mentioned that the dead body was found by the police in the morning of 22.8.1994 at 8.00 AM with injuries over neck in a DDA jungle graveyard near Kabir Nagar. It is further written there that as per allegations made by the father, the deceased had left the house at about 5.00 PM on 21.8.1994 and had not come back since then. Regarding this writing PW-19 Dr. K.K. Banerjee, autopsy surgeon in his deposition has stated that he had mentioned these facts in accordance with the inquest papers and as told to him by the I.O. that the deceased had left the house at about 5.00 PM on 21.8.1994. In the inquest proceeding there is no mention of the fact about the deceased having left his house on 21.8.1994 at 5.00 PM and his subsequent non-return. Though the IO Ajaib Singh PW-18, has denied that he told this fact to the doctor but the doctor could not have imagined these facts and write them in his report without being told about them. The doctor has categorically stated that the fact was told to him by the I.O. and there is no reason for us to disbelieve him. In case the deceased had left the house at 5 p.m. there was no occasion for him to have left the house again at 7 p.m. with appellants. This brings an infirmity in the prosecution case. Any how, till the post-mortem examination on the dead body of deceased Abdul Kalim which was over by 3.30 PM on 23.8.1994 the fact that the deceased had left in the company of the appellants in the evening of 21.8.1994 was not known to the I.O. otherwise this fact at least would have been definitely mentioned in the post-mortem report Ex.PW-19/A.

20. There is yet another important circumstance which re-enforces the contention of the appellants that the I.O. was not aware of the story put-forth by PW-1 Abdul Wahid and PW-2 MS. Muniran up to 23.8.1994. The case was registered on the report of the I.O. under Section 302 IPC on 22.8.1994. On 23.8.1994 the I.O. sent a summary of the fact of the case to the autopsy surgeon which is Ex.PW-18/C in which again he mentioned that on 22.8.1994 on receipt of D.D.No, 17 he went to the DDA land near graveyard and found a dead body of an unknown person lying on the ground and that the dead body had incise wounds on its neck and both the ends of the mouth etc., and that the relatives of the dead body could not be traced out and that some unknown person had committed murder of that person with a sharp-edged weapon. This report was prepared by the I.O. on 23.8.1994. Still it does not find mention the name of the deceased and also the name of the suspects who were alleged to have committed this murder. It means that neither the dead body was identified nor was the offender was known till this writing was made. Importantly on the top of this writing which is dated 23.8.1994 the FIR number of the case is written as 350/94 dated 22.8.1994 under Section 302 IPC. Similar is the position with regard to the memos prepared for identifying of the dead body at the mortuary on 23.8.1994, the statement of Abdul Majid Ex.PW-4/A and that of Habibullah Ex.PW-5/A. At the top of both these papers the case FIR number is written as 350/94 dated 22.8.1994 under Section 302 IPC. It means that the case has not bene converted till then under Section 302 IPC read with Section 34 IPC. But all the papers which have been written by the I.O. after the arrest of the appellants on 10.11.1994 and 11.11.1994 carry the FIR No. 350/94 dated 22.8.1994 under Section 302/34 IPC. It means that Section 34 was added only after the arrest of the appellants as accused and recording of their disclosure statements, regarding the involvement of

all the four appellants in the commission of the offence of murder.

It has been pointed out by the learned defense counsel that the statements of Abdul Wahid PW-1/DA and Ms. Muniran PW-2/DA were allegedly recorded under Section 161 of the Cr.P.C. on 22.8.1994 and 23.8.1994 respectively as per the statement of the I.O. SI Ajaib Singh PW-18. the statement of Abdul Wahid Ex.PW-1/DA mentions the FIR Number etc. at the top as 350/94 dated 22.8.1994 under Section 302 IPC. But the statement of Ms.Muniran has the offence under Section 302/34 IPC written over it. Date of writing it, as written over it, is 22.8.1994. It is evident that the statement of these witnesses were not recorded by the I.O. on 22.8.1994 and 23.8.1994, as claimed in the statement of I.O. SI Ajaib Singh PW-18.

The learned counsel for the appellant has argued that the statements of Abdul Wahid PW-1 and Ms. Muniran PW-2 recorded under Section 161 Cr.P.C., Ex.PW-1/DA and PW-2/DA, are ante-dated by the I.O. and these statements were in fact recorded after 10.11.1994 after the arrest of the appellants. Considering the discrepancies in the documents and the statement of the I.O. we called the police file and perused it. Surprisingly, we noticed that in the Daily Diary recorded on 23.8.1994 there is a mention that the brother and the father of the deceased had informed the I.O. that they could not identify the assailants and the culprites who had murdered Abdul Kalim and that they would inform the I.O. of their names as soon as they come to know of them. This Daily Dairy is written and signed on 23.8.1994.The Court had put a pointed question to the I.O. Ajaib Singh PW-18 during his statement as to whether he had come to know of the name of the culprit on 23.8.1994 and if so, why had he not mentioned their names in any of the papers written on 23.8.1994.The I.O. admitted that he had come to know of the names of the persons who had committed the crime before 23.8.19943 but he had not mentioned it in any of the papers which were prepared till 23.8.1994.He, however, asserted that he had mentioned this fact in the D.D. No such fact has been mentioned in the D.D. It means that the statements of PW-1 Abdul Wahid and PW-2 Ms.Muniran were not recorded by the I.O. Ajaib Singh at least till 23.8.1994 and the possibility of their being ante-dated and interpolation in the D.D. of 22.8.1994 cannot be wholly ruled out.Anyway the benefit shall go to the appellants regarding this infirmity.

We may also notice some glaring discrepancies and the infirmites in the statements of PW-1 and Pw-2 Abdul Wahid and Ms.Muniran.Both of them had stated that Abdul Kalim left the house on 21.8.1994 at 7.00 PM in the company of the four appellants and he had not come back till 10.00 or 11.00 PM, therefore, they went to the house of the appellants where they were told that the appellants had not come back since evening.They again went to the houses of the appellants at 12 O'clock in the night and got the same reply.Thereafter, they went to their houses in the morning at 8.00/9.00 AM and again received the same information from the mothers of the appellants. Both these persons are close relative of the deceased Abdul Kalim.They are interested witnesses. The prosecution has not been able to examine any independent witness to corroborate their statements. There could not have been any dearth of such witnesses. They may be persons living in the neighborhood of these witnesses and the deceased who saw the deceased leaving in the company of the appellants in the evening.They could been persons of the locality where the appellants resided and who could have stated about the repeated visits of these two persons for making inquiry about Abdul Kalim. The independent witnesses have not been examined.These witnesses (PW1 & PW2) have also not given plausible explanation for their not lodging a report with the police at mid-night when Adbdul Kalim did not return or early in the morning when he had still not come back and there was also no trace of the appellants who had taken him. Abdul Wahid PW-1 has stated that he had gone to the police station at about 10.00 or 11.00 AM on 22.8.1994 when he was told about the recovery of a dead body. He further stated that he went to the G.T.B. Hospital.He had identified the body as that of his brother.It means that on 22.8.1994 at least the name of the deceased was known, still in all the papers which were prepared by the I.O. whether on 22.8.1994 or on 23.8.1994 the name of the deceased had not been mentioned.PW-1 Abdul Wahid has further stated that he was taken to the police station at 8.00 PM and inquiry was also made from him about his suspicion.He further stated that he and his mother had seen the dead body for the first time in the G.T.B. Hospital at about 7.00 PM on 22.8.1994.If it is so, his statement in the examination-in-chief that he saw the body in the afternoon when he had gone to the police station and was informed about the recovery of a dead body and was taken to the G.T.B. Hospital where he had identified his body is not correct.The dead body was identified by both his mother and him at 7.00 PM on 22.8.1994. Furthermore, in the cross-examination PW-1 Abdul Wahid has stated that he and his mother had gone to the houses of the appellants on 21.8.1994 at about 8.00 PM, 10.00 PM AND 12 O'clock in the night and again at 8.00 AM on 22.8.1994 but these facts have not been mentioned in the statement recorded under Section 161 CR. P.C., copy of which is Ex.PW-1/DA. Moreover, it has not been stated even in the examination-in-chief that both of them had first gone to the houses of the appellants at 8.00 PM on 21.8.1994. Ms.Muniran P2-2 has also not corroborated this statement.

PW-1 Abdul Wahid has further stated that Abdul Kalim was wearing T-shirt when he left the house on 21.8.1994 but his mother Ms.Muniran PW-2 has stated that his T-shirt was hanging form his shoulder when he left the house. It is also pertinent to note that the T-shirt was not found on the dead body of Abdul Kalim.The -T-shirt was recovered from the shop of a barber.This is mentioned in the statement of PW-1 Abdul Wahid and PW-2 Ms.Muniran and also in the statement of Ajaib Singh , I.O. PW-18. Even after it was recovered the IO did not care to interrogate the barber at whose shop it was found.No explanation has been given by the prosecution for not making inquiry from the barber and also joining him in the investigation.It means that after Abdul Kalim had left his house and his body was found near the graveyard next morning he had been to the shop of the barber also .Since the time of his death as per post-mort examination report is around 2.00 AM or 3.00 on 22.8.1994, Abdul Kalim appears to have visited the shop of the barbar before that. There is no evidence that he was accompanying the appellants at that time.The onus was on the prosecution to prove by cogent and reliable evidence that abdul Kalim was last seen in the company of the appellants and nobody else.The prosecution has not been able to discharge this burden beyond all reasonable doubts.

Mr. Muniran PW-2 in the cross-examination stated that she was interrogated by the police at 4.00 or 5.00 PM on the next day i.e. 22.8.1994. She contradicts the statement of PW-1 Abdul Wahid and also the I.O. Ajaib Singh PW-18 who has stated that he had jointed Ms.Muniran in the investigation at about 8.00 PM . It is noteworthy that all the appellants in their statement under Section 313 Cr. P.C. have denied that Abdul Wahid PW-1 and Ms. Muniran PW-2 had visited their houses, as alleged by them.In support of this statement they have examined Mohd.Azad DW-1, who is elder brother of appellant Mohd.Sabir. His statement is that Mohd.Sabir, appellant was picked up by the police from the house on 9.11.1994 at about 5.00 PM and the police had demanded R.5000/- for his release and that the money could not be paid so he was falsely roped in. DW-2 is Smt. Anu, who is a neighbour of the appellant Anil Khanna.She has stated that on 9.11.1994 at about 4.30 PM the police had come and had taken away Anil Khanna. She further stated that the police had demanded money for this release and the mother of this appellant could not arrange the money.So, he has been falsely implicated. Making similar statement DW-2 Chottey Lal has stated that he was father of appellant Lakhpat Singh and that the police had taken away Lakhpat Singh, appellant from his house on 10.11.1994 and 4.00 PM and that the police has assured that he would be released after some time but later on the police demanded R. 5000/- for his release which he could not pay, so, the appellant had been falsely implicated in the case. DW-4 Mohd.Ali is father of appellant Faryad Ali. He has also stated that on 7.11.1994 at about 8.00 AM Faryad Ali was taken away by plain-clothes men and that on the next day he went to the police station and enquired about his son and that he was assured that he would be released soon.But a man came outside the police station and demanded Rs.4000/- to Rs.5000/- from him for the release of his son.Since he could not make the payment, the appellant was falsely implicated in this case.They have been cross-examined by the prosecution but have denied that they were making false statement.

A close examination of all the documentary and oral evidence of the prosecution discussed above leads to an irresistible conclusion that the prosecution has not been able to prove the circumstance of last seen beyond all reasonable doubts. It has not been proved that Abdul Kalim was last seen before his death in the company of these four appellants.

The appellants in their statements made under Section 313 Cr. P.C. have also stated that they were joined in the inquiry conducted by the I.O. after the recovery of the dead body and that they were very much available in their houses before they were picked up by the police, as stated by the witnesses examined by them.They have emphatically stated that at no time they had absoconed.The learned defense counsel has pointed to the statement of PW-1 Abdul Wahid, who in the cross-examination,has admitted that the I.O. had interrogated about 60 or 70 people of the locality in connection with this case and had then let them off.He has admitted that Mohd.Sabir, appellant was one of those persons who was so joined by the I.O. in August, 1994.Though the I.O. Ajainb Singh PW-18 has denied has making inquiry in the locality and joining appellants or even appellant Mohd.Sabir in August, 1994, but it is difficult to believe that after the recovery of the dead body the IO would not make any inquiry in the locality at all.Therefore, his statement that he did not talk to anyone much less appellant Mohd.Sabr does not inspire confidence.The I.O. Ajaib Singh PW-18 has stated that the appellant were not available in the locality and PW-2 Ms.Muniran has stated that she did not see them before their arrest in November, 1994.But the prosecution has not produced any documentary or even oral evidence of independent nature to prove about any effort made by the I.O. to jon the appellants or any of them between 22.8.1994 and 10/11/11-11-1994.We do not find any good reason to disbelieve the statements of the appellants that they were very much present in their houses and locality and remained available throughout the period till they were picked up from their houses 10/11-11-1994.The second circumstances that the appellants had absconded soon after the body of Abdul Kalim was recovered is also not established beyond all reasonable doubts.

The third circumstances and important one is the recovery of the alleged weapon of offence Ex.P-1 razor and Ex.P-2 `Chhura'. Besides there is also recovery of the pair of shoes Ex.PW-3/1&2 allegedly worn by the deceased at the time of his murder.So much of the statements of an accused which is made during the custody to the police which leads to the discovery of some incriminating facts or material like commission of offence, dead body etc.etc. and which is distinctly connected with the offence is admissible in evidence under Section 27 of the Indian Evidence Act. The prosecution was required to prove the recovery of the weapon of offence Ex.P-1 and P-2 and the pair of shoes of the deceased by leading cogent and reliable evidence and prove the effects strictly in accordance with Section 27 of the Indian Evidence Act.

At the outset it may be noted that the appellant Anil Khanna though made a disclosure statement Ex. PW-18/H but as consequence thereof no fact or material was discovered.His pointing out to the place of occurrence is not a fact discover as conseqenec of his disclosure statement, therefore, it is not admissible in evidence.The place of occurrence was known as the body was found on 22.8.1994 in the morning from the DDA land adjacent to the graveyard.

As regards the recovery of the razar Ex.P-1, `Chhura' Ex.P-2 and the pair of shoes Ex.P-3/1&2 the prosecution has examined three witnesses, PW-3 Rajender Singh, PW-17 Const,Laxmin Narain and SI Ajaib Singh PW-18 who is I.O. of the case. PW-3 Rajender Singh, who is a public man, in his statement has not supported the case of the prosecution.He has stated that about 7 or 8 months back at about 9.00 or 9.30 AM four persons had taken the police to a pond and they had produced a knife from that place but he could not identify them. In the cross-examination conducted by the learned APP he however admitted his statement recorded under Section 161 Ex. PW-3/A as correct. He stated that one of the four persons had produced the razor after digging out at that place and the second man had produced a knife after digging out the place and the third persons had produced a pair of shoes of red colour from the bushes in the his presence. However, he could not identify the appellants as those persons who had got the above-mentioned articles recovered.

PW-17 Const. Laxmi Narain in his examination-in-chief itself has stated that all the four appellants were taken out by the IO from the lock-up and the appellant Faryad Ali had led them to a vacant piece of land belonging to the DDA and he got a razonr Ex.P-1 recovered which was taken into possession vide memo Ex.PW-17/A. He further stated that the rzzonr was put in a sealed parcel and was seized by the I.O. It is also in his statement that the appellant Mohd. Sabir had also led them to the said land and he recovered a knife Ex.P-2 which was also taken into possession by the I.O. after sealing it vide memo Ex.PW-17/B. His further statement is that appellant Lakhpat Singh had also led them to a place near wall at the DDA land and has got a pair of shoes of red colour recovered and it was taken into possession vide memo Ex.PW-17/C and that pair of shoes was Ex.P-3-1&2.He has admitted in the cross-examination that the place from which these recovery were made was an open and easily accessible to the public and the passers-by.It is not stated by him that the razor Ex.P-1 and the `chhura' Ex.P-2 or shoes Ex.P-3/1&2 were hidden and were not visible to anyone who might have access to this land or passed through it. It is not stated that these articles we buried and concealed under the ground or under dense bushes or stones.

Similarly SI Ajaib Singh PW-18 in his examination-in-chief has stated that the appellant Faryad Ali during interrogation had made disclosure statement Ex.PW-11/D to get the razor recovered from the ditch at the place of occurrence and that he had taken the police party to the ditch and got the razor Ex.P-1 recovered.He further stated that appellant Mohd.Sabir also made a disclosure statement during interrogation which is Ex./PW-11/C and he also offered to get the `chhura' recovered from the place of occurrence and that he pointed out to that place and the `chhura' Ex.P-2 was recovered which was measured by him and sealed and was taken into possession Ex.PW-17/D. He has further stated that similarly the appellant Lakhpat and Anil Khanna, who were arrested on 11.11.1994, made disclosure statements Ex.PW-18/G and PW-18/H. It is stated that appellant Lakhpat disclosed and offered to point out a place near the wall at the place of occurrence to recover the shows of the deceased and he got a pair of shoes recovered vide Ex.PW-14/C.

In their examination-in-chief none of these witnesses has stated that the razor Exz.P-1 and the `chhura' Ex.P-2 and the pair of shoes Ex.P-3/1&2 were recovered fro such a place which was not accessible to the public and which was hidden from eyes or that they were buried under the ground or were hidden behind the bushes and the stones,not accessible to anyone.Rather it is admitted by the IO also that the land was a DDA land and it was open and was accessible to anyone.Rather it is admitted by the stones,not accessible to anyone.Rather is it admitted by the eIO also that the land was a DDA land and it was open and was accessible to all and sundry.Therefore,it cannot be said that the appellants had exclusive knowledge as to where the weapon of offence or showers were hidden or kept.

The learned counsel for the appellants has stated that Const.Sumer Singh is also alleged to be a witness of the recovery but he has not been examined and adverse inference should be drawn against the prosecution case.As noticed above even the two witnesses PW-17 Const.Laxmi Narain and the I.O. PW-18 have not been able to prove that the razor and the `chhura' Ex.P1 & P2 and the pair of shoes Ex.P-3/1&2 were recovered as a consequence of the disclosure statement beyond all reasonable doubt and PW3 Rajender Singh has not identified the appellants as the persons who got the recovery of weapons and the shoes made. The prosecution witnesses have,thus, been not able to prove recovery in accordance with Section 27 of Evidence Act.

Shri Mohd.Sajid, learned amices Curaie for the appellant has cited Abdul Haque Ali Vs. State of M.P. 1983 Crl.L.J. NOC 12 in which it was observed that the recovery of a knife with blood stained in not a conclusive proof that the victims were struck with it and the prosecution must leas evidence connecting the weapon with the offence committed.He also refereed to State of Himachal Pradesh Versus Wazir Chand & Others, 1977 Cr.L.R. (SC) 511 in which it was observed that if incriminating articles were not recovered from the accused or recovered on the inform,action given by him, there cannot be any corroboration to the dying declarations far as that abused was concerned.Hed also referred to Kamji Vs. State of Rajasthan 1995 Crl.L.J 3860 where it is stated that recovery of ornaments of the deceasee and weapon of offence from open place accessible to all and their identification not aspiring confidence and there was not evidence connecting the accused with that offence so conviction was not proper.The case law cited support the argument that recovery of weapon of offence and the pair of shoes is not reliable.

Besides proving that the facts have been discovered as a consequence of the disclosure statement made by the appellant,the prosecution was further required to roved that the recovered facts or material were distinctly related to the offence.Razor Ex. P-1 and `Chhura' Ex.P-2 were not sent to autopsy surgeon Dr.K.K. Banerjee, PW-19 Dr. Banerjee during hsi statement has sated that the injury No.11 which is fatal is possible to be caused by the razor Ex.P-1 and other injuries could be caused by `Chhura' Ex.P-2. The doctor has simply given the possible cause of injury.If the recovery at the behest of the appellant is established beyond all reasonable doubts an inference could be drawn that these were used by the perpetrator of the crime for commission of offence.It is not so proved.Moreover, the prosecution has not cared to lead evidence to prove that the pair of shoes allegedly recovered at the instance of appellant Lakphat belonged to the deceased and that he was wearing it at the time of his murder.Not an iota of evidence has been led to show that these shoes were in the fet of the deceased in the fateful night.Rather on the other hand there is contradiction in the statements of PW-1 Abdul Wahid and P2-2 Ms.Muniran and the statement of PW-17 Const.Laxmi Narain about the colour of the echoes recovered and the shoes which the decease was wearing at the time of his departure from him on that fateful night. Ms. Muniran PW-2 ahs stated that it was block colour shoes.Abdul Wahid PW-1 stated that it was brown colour shoes.Pw-3 Rajdnder Singh has stated that it was of red colour.PW-17 Const.Laxmi Narain has stated that it was of red colour. Anyway, it has not been proved that the shoes were of the deceased.It is beyond comprehension as to why an appellant would take off the worn ut and torn shoes with holes in the sole from the fet of a person murdered by him and throw it about 100 yards away.During the course of arguments, in fact,a dispute was raised by the learned counsel for the appellants that Ex.P/1 & P/2 was a pair of brand new shoes at though it was recovered after 85 days from a muddy and open place and the shoes could not have remained cleared.The shoes were called and were seen.They were found to be a pair of old brown colour worn out shoes with holes in their soles.

It is also worth noticing that the recovery of the above mentioned articles was made 85 days after the occurrence. As said above the recovery was from the open land and these articles could not have remained there intact had they were thrown by the appellants after the occurrence since the palace was accessible to the general public.The contention of the appellants is that in order to falsely implicate the appellants, they were planted on them by showing a fake recovery as a consequence of disclosure statement.On the other hand it has been contended on behalf of the prosecution that photographs of the place of recovery of these articles were taken and were placed on record.In reply, the appellants have stated that the photographs were taken forcibly.Anyhow, in the totality of the facts and circumstances, the third circumstance i.e. recovery of razor Ex.P-2 and the pair of shoes Ex.PW-3/1&2 has not been proved and connected with the commission of the offence beyond all reasonable doubts.

It may also be noted that the prosecution has not led any evidence to prove the motive for the appellants to commit the offence. There is no evidence at all to prove the motive for this heinous crime.This also brings infirmity in the prosecution case.It may be noticed here that the deceased was a B.C. of the area and might have a number of enemy. The possibility of any one of them committing his murder cannot be ruled out.

As regard argument of the learned amices Curaie for appellant Lakhpat Singh that the charge framed is vague we find that the charge is indeed vague and not specific as to the date.It simply said "that prior to 22.8.94 at an unknown date"...." when it was the case of the prosecution that the deceased was last seen alonghwith the appellant at 7 p.m. on 21.8.1994. It was required to be specific as to the date when the offence was committed as required by Section 212 Cr.P.C. But it should not detain us further since we have found that the three important circumstances have not been proved and the chain is not complete to hodl the appellants guilty of the offence charged with.

We need not discuss the evidence of other witnesses which the prosecution has examined as their statements are of formal nature and have not been challenged before us and they do not throw and light on the circumstances discussed above.

From the discussion made above it is clear that circumstances of last see, recovery of weapon of fence etc. and that the appellants has absconded and made themselves unavailable after the occurrence have not been established by the prosecution beyond all shadow of doubt.The chain of circumstances is incomplete and it cannot justify the conviction of the appellants.The order of learned Additional Sessions Judge is unsustainable in law.

For the reasons stated above the appeals are allowed.Impugned order of conviction and sentence is set aside.The appellants be released for within if not required in any other case.The order be conveyed to the appellants in jail through the Superintendent of Central Jail, Tihar.However, parties are left to bear their own costs.