On 3.10.1987 Indel and Basanta took Jagdish and his driver Pappu alongwith the said tractor, but on 13.10.1987 when Jagdish did not return back, then his brother Ramesh (PW-2) searched for him at Gohad and other places and thereafter lodged a report at police Station, Madhoganj.In this report, it is mentioned that accused Indel Singh has been caught by police Station, Malpura, Distt.Agra (UP) and his brother Jagdish alongwith driver Pappu had gone with him for cultivation and they have not returned, therefore, he has an apprehension that Indel and Basanta have committed some offence with his brother giving details of the clothes which were worn by Jagdish and Guddu at the time of leaving their 3 Criminal Appeal No.573/00 home.During investigation, it is revealed that Jagdish and Guddu were taken by Indel and Basanta with a view to kill them and Indel and Basanta in criminal conspiracy with Rambabu and Babukhan looted tractor from Jagdish and Guddu inasmuch as said tractor was recovered by police Station, Malpura, Distt.These hairs could be a vital link to ascertain the identity of the deceased.They were also not produced before the Court.Another link which has not been carefully examined by the learned Additional Sessions Judge is the evidence of Laxmibai (PW-3) who has admitted in para 12 of her cross- examination that the day Agra police had visited, on the same day skeletons of her husband and Guddu alongwith clothes were recovered by them from Kanipura close to Gohad.This admission of Laxmibai makes the whole prosecution story and recovery on 22.10.87 vide Ex.P/6, Ex.P/7, Ex.P/8, Ex.P/9, Ex.P/10 and Naksha Pachayatnama Ex.P/5 and Ex.P/11 doubtful as none of them have been prepared by Agra police but have been prepared by Mahoganj police leaving a void in 22 Criminal Appeal No.573/00 the chain of circumstances.Another missing link in the chain of circumstances is lodging of missing person report by Ramesh (PW-2) after admitting this fact that Agra police had visited him and his sister-in-law Laxmibai on 13.10.87 alongwith Indel and informed him about confession of Indel that he has killed his brother and driver and thrown the remnant in a canal at Dang Birkhari, yet missing person report was lodged and not a report of murder in the hands of Indel.(Delivered on this 24th day of July, 2019) Per Justice Vivek Agarwal :This appeal has been filed by appellant Indel Singh @ Udai Singh son of Badam Singh being aggrieved by judgment dated 28.7.2000 passed by the Fourth Additional Sessions Judge, Gwalior, in Sessions Trial No.117/88, whereby appellant has been convicted under Sections 120-B, 302 and 394 of IPC and sentenced to five years RI with fine of Rs.1,000/-, life imprisonment with fine of Rs.3,000/- and ten years RI with fine of Rs.2,000/- respectively.The appellant was charged for committing murder of 2 Criminal Appeal No.573/00 Jagdish and Guddu with a view to loot their tractor alongwith co-accused Basanta and Rambabu.Co-accused Babu Khan, who was tried alongwith the appellant, was charged under Section 411 of IPC for receiving the looted property knowingly.Prosecution story, in short, is that on 3.10.1987 Indel alongwith co-accused Basanta visited Jagdish asking him to cultivate his fields with his tractor and cultivator as Jagdish was having a tractor bearing registration No.MP W 4653 which he was using to cultivate fields of different persons on remuneration.Agra from Indel Singh and Babu Khan, as a result of which initially case was registered under Section 364, 392 and 120-B of IPC at Crime No.441/87 by police Station, Madhoganj, on 16.10.1987, as is evident from FIR, Ex.It has also come on record that in the memorandum Ex.P/1 recorded under Section 27 of the Evidence Act, Indel Singh has admitted committing such crime.It is also a matter of record that Babu Khan has been acquitted of the charges under Section 411 of IPC on the ground that in prosecution evidence there is no material to show that Babu Khan had either purchased tractor bearing registration No. MP W 4653 or any part of such tractor.From the record, it is also evident that police has not taken any steps to either arrest Basanta and Rambabu.After preparing a Farari Panchnama on 27.10.87, 4 Criminal Appeal No.573/00 no steps were taken to declare them absconding inasmuch as no proceedings were undertaken under Section 82 of Cr.P.C.Learned counsel for the appellant submits that this is purely a case of circumstantial evidence based on the doctrine of last seen and recovery of clothes of the deceased plus broken pieces of the bone and an axe at the instance of Indel Singh.It is submitted that Laxmi Bai (P.W.3) is the widow of deceased Jagdish, who has identified the clothes of the deceased and is a witness of T.I.P., but there are several loopholes in such identification and TIP rendering them inadmissible, and therefore, it is apparent that theory of last seen too has been developed subsequently so to falsely implicate present appellant Indel Singh.It is also submitted that in case diary statement (Ex.D/2), Ramesh Kumar (P.W.2) has categorically admitted that his brother Jagdish was knowing Basanta and Indel Singh from a previous date inasmuch as Babulal Sharma resident of Girwai had recommended that Basanta is his relative and shall not commit any dishonesty in paying the money for cultivation.It is also submitted that this Babulal Sharma has not been examined by the prosecution though he is an important witness on whose recommendation tractor was sent for cultivation as he had 5 Criminal Appeal No.573/00 made a recommendation in favour of Basanta.It is also submitted that though Babulal Sharma son of Jagannath Prasad has been cited as a witness by the prosecution, but he was not examined before the Court and such non-examination of an important prosecution witness is fatal to the prosecution story.Agra Police reached their home on 13.10.1987 alongwith Indel Singh and asked them as to the name of their brother and his whereabouts.His sister-in-law Laxmi Bai (P.W.3) also identified Indel Singh and Agra Police had informed them that Indel Singh was caught selling his tractor and further informed that as per the statements of Indel Singh he killed his brother and driver and had thrown their dead-bodies in a canal at Dang Birkhari.It is submitted that this witness has also deposed that he visited Dang Birkhari canal alongwith Agra Police accompanied with his neighbour Thakur Singh, but on investigation, it was revealed that no such incident had taken place in that locality, then Agra Police had taken back Indel Singh.It is also pointed out that thereafter Ramesh (P.W.2) 6 Criminal Appeal No.573/00 lodged missing person report at Police Station Madhoganj.It is submitted that when Agra Police had already informed him about killing of his brother and driver, then there was no occasion for lodging a missing person report with Madhoganj Police after his meeting with Agra Police and Indel Singh.It is also submitted by learned counsel for the appellant that Ramesh (P.W.2) in para 13 of his cross-examination has admitted that Agra Police had interrogated him and obtained his signatures on certain documentation which was carried out by Agra Police both at his residence and at Agra and thereafter, tractor was handed over to him in his custody, but also admitted that such tractor was not registered in his name and further admitted in para 13 of his cross-examination itself that tractor is not available on the date of giving statement.It is further submitted that this witness in para 17 has admitted that when he visited Madhoganj Police Station he was knowing that his brother is dead.Reading such evidence of Ramesh (P.W.2), it is submitted that when tractor was not registered in the name of Ramesh, then it could not have been given in custody to this witness.Secondly, if tractor was obtained by Ramesh (P.W.2) on Supurdiginama, then he was required to preserve such tractor as it was a vital piece of 7 Criminal Appeal No.573/00 evidence in the chain of evidence, specially in a case based on circumstantial evidence.It is also submitted by learned counsel for the appellant that Ramesh (P.W.2) has admitted in para 14 of his cross- examination that Madhoganj Police had not obtained any of his statement when report was lodged with them.He also admitted in para 15 that he had informed Madhoganj Police that Agra Police had brought Indel Singh to his house and then they visited Dang Birkhari alongwith Agra Police when Agra Police had informed that Indel Singh has confessed to them that he has killed his brother and driver.P/18 and they have been improvised subsequently in Court statements.It is also submitted by learned counsel for the appellant that testimony of Ramesh (PW-2) and Laxmi (PW-3) in regard to identification of Indel Singh is doubtful except that they had seen Indel Singh when Agra police had brought him to their residence on 13.10.1987 inasmuch as, as per prosecution story Indel Singh and Basanta had taken their tractor, but though these witnesses have given graphic account of Indel Singh's appearance, but Ramesh (PW-2) in para 18 of his cross-examination admitted that he cannot give details 8 Criminal Appeal No.573/00 (Huliya) of Basanta.If Basanta and Indel Singh are to be implicated on the basis of theory of last seen, then this witness would have given details of Basanta with equal firmness and this omission is a major omission which has not been adverted to by the learned trial Court.It is also submitted by learned counsel for the appellant that Laxmi (PW-3) has admitted that her husband was taken to cultivate about 150 Beegha of land.Rate of cultivation was fixed at Rs.25/- per Beegha.150 Beegha roughly translates into 90 acres of land and during season of cultivation it takes about 45 hours to cultivate such land which roughly translates into 4-5 days looking to the fact that those who are aware of farming practices are aware that about 2 acres of land is cultivated in an hour and usually cultivators work for 8-10 hours a day and at this rate there was no occasion for the complainant party to wait for 10-12 days for the return of their near dears.It is submitted that appellant has been falsely implicated.It is submitted that as per Laxmi (PW-3) deceased was wearing a white shirt with some lining and a Khaki coloured pant with a watch in his hand.It is submitted that the clothes which have been recovered by the police at the instance of Indel Singh vide seizure memo Ex.P/9 contain a 9 Criminal Appeal No.573/00 white Bushirt with squares and not the lines which was containing spots of diesel.It is submitted that description of this shirt is different from the one given by Laxmi (PW-3).It is also submitted that admittedly Laxmi had seen Indel Singh on 13.10.1987 when Agra Police had brought him to their house, therefore, identification parade carried out vide Ex.P/3 loses its sanctity as prosecution had already shown Indel Singh to prosecution witnesses Ramesh (PW-2) and Laxmi (PW-3) at their residence.It is also submitted by learned counsel for the appellant that appellant was brought from Agra jail on 20.10.87 from where he was formally arrested, but such witnesses of formal arrest, namely, Indrapal Singh and Babu have not been examined by the prosecution in support of such formal arrest.It is also submitted that prosecution has not bothered to produce any DNA report to connect recovered pieces of dead- body to deceased Jagdish and Gudda.It is submitted that Ex.P/26, which is a report from the department of Anatomy, G.R. Medical College, Gwalior, to Superintendent of Police, Gwalior, clearly makes a mention that sex cannot be determined for material A, whereas in regard to material D, it is mentioned that it was a male body aged 30 to 50 years.Material E is a body of a male aged 21 to 30-40 years.It 10 Criminal Appeal No.573/00 contains mark of injury on left temporal bone by a blunt object.There was a recommendation to send the case to the Institute of Forensic Medicine, M.G. Medical College, Bhopal, for determination of skin and hair, but there is no report from Institute of Forensic Medicine on record.It is submitted that in fact bodies were sent in five parts and in memo Ex.P/21, age of Jagdish has been shown to be 30 years, whereas that of Guddu to be 18 years.P/26 age of material D, which is allegedly part of body of Jagdish, has been shown to be 30 to 50 years, whereas age of part E which is allegedly head of dead-body of Guddu has been shown to be 21 to 30-40 years.It is submitted that when this memo Ex.P/26 is taken into consideration in the light of evidence given by Dr. O.N.Khare (PW-13), then it becomes evident that in para 4 of cross-examination, this witness has admitted that minimum age given by him could not have been breached and age of such person cannot be below such minimum age mentioned in his report.In view of such facts, it is submitted that identification of deceased Jagdish and Guddu cannot be said to be complete on the basis of such report and evidence of Dr. O.N.Khare (PW-13).It is also submitted that Dr. O.N.Khare has admitted that he had not received all the 11 Criminal Appeal No.573/00 bones of a human body, and therefore, in absence of any forensic report like DNA report to corroborate that bodies recovered were that of Jagdish and Guddu only, no conclusive evidence can be gathered as to death of Jagdish and Guddu.Learned counsel for the appellant submits that seizure was not properly made at the time of recovery of dead-bodies.According to Naksha Pachayatnama (Ex.P/5), death was caused with an axe and gunshot, but factum of gunshot has not been corroborated by Dr. O.N.Khare (PW-13).There is no recovery of gun.It is also submitted that as per FSL report, blood stains were found on the axe recovered from an open space as is evident from Ex.Such recovery of an axe from an open place makes recovery doubtful and also creates doubt that how blood stains could have remained clinging to the axe after several days of the incident inasmuch as it has come on record that body which was recovered was found to be about 20 days old (please refer to Ex.P/10, Fard Japti).12 Criminal Appeal No.573/00 Recovery was made on 22.10.87, whereas deceased had allegedly left their home on 3.10.87 and this causes doubt as to the prosecution story.It is also submitted that none of the relatives of deceased Guddu have been examined in the matter so to seek his identification and even Supurdginama of tractor is not on record.Learned Additional Sessions Judge has also recorded a finding that after getting information about seizure of tractor from accused Indel, since Jagdish and Guddu had gone with Indel for cultivation work, missing person report was lodged by 16 Criminal Appeal No.573/00 police Station, Madhoganj, after which accused Indel was arrested and then on the information of Indel dead-bodies of Jagdish and Guddu were recovered.Such memorandum (Ex.P/1) has been relied by the learned trial Court.In para 25 to connect such recovery of dead-bodies and clothes at the instance of Indel Singh, it has been referred to that vide seizure memo Ex.In Ex.Thereafter, there are reports about material D and material E which leads to a doubt as to whether there were bodies of more than two persons, two persons or less number of persons.As far as determination of age is concerned, as per Parikh's Textbook of Medical Jurisprudence and Toxicology, III Edition 1979 revised reprint 1981, on identification of mutilated bodies, fragmentary remains and mass disasters mentions that a description of colour, length and waviness of hairs offers useful contributory evidence in identification.In the present case, though Ex.No cause has been ascribed to such bruising; it was 21 Criminal Appeal No.573/00 due to animals drifting the body or otherwise.In fact, there is mention of injury to the right and left halves of mandible by sharp weapon, but it has not been mentioned that how such finding has been recorded, specifically when the lower part of the mandible was absent.Yet another missing link is handing over of the tractor in Supurdgi (custody) to Ramesh (PW-2) despite the fact that he was not the owner of said tractor.Another lacuna is that information of incident was recorded on 22.10.87 vide Ex.P/19, whereas FIR (Ex.P/18) was recorded on 16.10.87 under Sections 394, 392, 120-B of IPC while both Ramesh (PW-2) and Laxmibai (PW-3) have admitted of having knowledge of death of Jagdish and Guddu on 13.10.87 itself when Agra police had visited them.As per prosecution in the TIP (Ex.P/3) which was conducted on 29.10.87 Laxmibai had identified Indel.This TIP was carried out at police Station, Madhoganj, whereas in para 9 of her testimony, Laxmibai has admitted that she had not met Indel at jail.She had seen Indel in a garden alongwith 23 Criminal Appeal No.573/00 Agra police and then she met Indel in the Court and had not met him anywhere else.Therefore, TIP carried out in jail or police Station becomes doubtful because this witness (PW-3) has admitted in para 9 of her cross-examination that she had not met Indel in the jail/police station.This very witness has admitted in para 11 that the day Agra police had arrived at their place, she learnt about death of her husband and driver.She again admitted in para 11 itself that she had no doubt as to the factum of death of her husband and driver after meeting with Agra police.In para 12, she has admitted that she had no talks with accused Basanta and Indel.Another missing link in the chain of circumstances is that Ramesh (PW-2), who had seen Indel alongwith Agra police, has given a graphic account of his personality, but allegation on Indel is that he after hiring tractor alongwith Basanta, had taken it alongwith Jagdish and Guddu, but this witness has not given any details of Basanta and has expressed his ignorance about the physical parameters of Basanta.This causes serious dent to the prosecution story of last seen inasmuch as if Basanta and Indel had taken the tractor together and they were constantly seen by Ramesh (PW2), Laxmibai (PW-3) and Pappu @ Umesh (PW-4) coming to their house 24 Criminal Appeal No.573/00 prior to 3-10 days of hiring of tractor and they had offered them tea etc., then nothing prevented them from giving physical parameters of Basanta.This leaves sufficient room for doubt as to the identity of Indel as the person who was seen last by the prosecution witnesses in the company of deceased Jagdish and Guddu.Another missing link is of non-examination of Babulal.In his case diary statement Ramesh (PW-2) has admitted that it was on the recommendation of Babulal that Basanta was known to him and Basanta shall not misappropriate the labour charges, the tractor was taken by Jagdish and Guddu allegedly alongwith Indel and Basanta, but even when police had declared Basanta and Rambabu as absconding, yet no steps were taken to record statements of Babulal and even no steps were taken to obtain a proclamation under Section 82 of Cr.P.C. in regard to Basanta.This leads to a possibility that in fact it was Basanta, who was known to deceased Jagdish, had taken tractor and Indel may be a purchaser of such tractor alongwith Babukhan, who has been exonerated by the Court, but since Indel was caught with the tractor and brought by Agra police, therefore, theory of last seen has been developed so to complete investigation and take credit for bringing the 25 Criminal Appeal No.573/00 accused to the books.Another missing link is that prosecution has neither produced the engine number or chasis number of the tractor which was allegedly in possession of Jagdish, nor bothered to corroborate such details of the tractor found to be in possession of Indel.He has admitted that Rs.400/- were still outstanding towards Jagdish and tractor was not transferred in the name of Jagdish and was still registered in the name of Ramswaroop.He has also admitted that he had not given any transfer paper to Jagdish.In cross- examination, this witness has admitted that police had not taken any statement from him after death of Jagdish in relation to tractor.He also admits that he had not made any documentation in regard to sell of Harrow Thresher and Trolley.This statement of Ramswaroop makes the prosecution more vulnerable, specially when as per the settled law as per the provisions contained in Chapter XXIV of Cr.P.C. in regard to disposal of property, it is the criminal Court alone which 26 Criminal Appeal No.573/00 can make an order during any enquiry or trial handing over the proper custody of the property pending conclusion of enquiry or trial.But there is no such order of handing over of the custody by the concerned Magistrate on record.Besides this, there is an admission of Ramesh (PW-2) of disposal of such property.In fact, such property could have been handed over only to registered owner of such property and not to Ramesh, and therefore, whole story of Indel taking such tractor alongwith cultivator on hire becomes doubtful.Another circumstance which has not been taken into consideration by learned Additional Sessions Judge is non- recording of statement of Thakur Singh (PW-7) who has admitted that he had informed TI Madhoganj that he alongwith Ramesh had gone with Agra police upto Gohad Chauraha in search of the deceased.This statement has not been controverted and when such statement is examined in the light of the statement given by Laxmibai (PW-3) that skeletons were recovered by Agra police from Kanipura, Gohad, non recording of statement of this witness and denying opportunity to the defence to confront him with such statement of the Town Inspector Hakim Singh (PW-11) leaves a vacuum in the story of prosecution.27 Criminal Appeal No.573/00Another lacuna is that this witness (PW-7) has admitted that when he had signed Panchnamas, at that time he is not in a position to explain whether another witness of Panchnam had signed or not and then further admitted that at the time of putting his signatures on such Panchnamas, signatures of Shrilal were not present and then further admitted in para 14 of his cross-examination that Shrilal had not signed on such Panchnamas in front of him.When this statement is seen in the light of evidence of Laxmibai (PW-3) that skeletons were recovered by Agra police, Shrilal has not been examined as a prosecution witness but as defence witness and has not supported prosecution story, authenticity and genuineness of such Panchnamas becomes doubtful.Another missing link is non-examination of any of the relatives of deceased Guddu in regard to identification of his clothes and dead-body.Testimony of Kanhaiyalal (PW-9) in regard to last seen is also doubtful.He deposed that he has a scooter repairing shop at Phoolbagh Gurudwara.He further deposed that he is also involved in the work of tractor repairing.He is a resident of Girwai close to the house of deceased Jagdish.He has given his deposition in abstract terms without giving any details.He has only deposed that at 28 Criminal Appeal No.573/00 that time at about 12 he was standing at Chandravadni Naka when Jagdish stopped after witnessing him standing there.Guddu, Basanta and Indel were with him.This witness has submitted that thereafter Jagdish had gone on Dabra road, then he gathered information that Jagdish and Guddu have been murdered.This witness has admitted that he is neighbour of Jagdish.Witness of seizure Thakur Prasad and deceased Guddu are of his community.Guddu has been shown to be a scooter mechanic who was working at a scooter agency of one Mr. Bali.Though this witness has denied the suggestion that Guddu Kushwaha was his close relative, but has admitted that he had gone to purchase spare parts of Jeter tractor at the agency of Sancheti.He has further admitted that such spare parts are available in close proximity of his shop at Phoolbagh and all the mechanics and spare part sellers close to his shop are known to him.He also admits in para 6 that he was not knowing Basanta, Indel or Babu prior to the date of incident.He admits that Jagdish had given names of these three persons to him at Jhansi road square.This is contrary to his statements given in examination-in-chief.It is also an admitted position as per his examination-in-chief that only Guddu, Basanta and Indel were the persons whom he met, and therefore, his 29 Criminal Appeal No.573/00 admission in para 6 that name of Babukhan was given to him by Jagdish is a major contradiction inasmuch as Babu Khan was not admittedly present, and therefore, there was no occasion for Jagdish to have given name of Babu Khan.This when read in conjunction with the fact that Guddu and Thakur Prasad, witnesses of seizure are his relative and he is neighbour of Jagdish, leaves sufficient doubt as to how he has been roped in by the prosecution to fill in the lacuna in the testimony of Ramesh (PW-2) and Laxmibai (PW-3) so to complete the chain of last seen.Testimony of this witness does not inspire confidence as to the theory of last seen.Hakim Singh (PW-11), who has been wrongly shown as PW-11 inasmuch as one Narayan Singh has also been shown as PW-11 so also Hakim Singh by the trial Court which recorded the evidence.Narayan Singh has admitted that no seizure of any tractor or its parts was made in front of him by the police at village Dhanoli under Malpura police Station.He refused to identify the accused person.He refused to testify arrest of Indel by Daroga and also denied that Indel had given any confessional statement as to theft of tractor.He has denied that two persons had absconded from the place from where tractor was seized.Therefore, seizure of tractor could also not 30 Criminal Appeal No.573/00 be proved by the prosecution.Evidence of Hakim Singh (PW-11) to the effect that dead-bodies of Jagdish and Guddu were excavated from under the stones in the jungle of Udaukho is not supported by statements of Laxmibai (PW-3), who has admitted that Agra police had already recovered skeletons.Seizure memos are doubtful as per the testimony of Thakur Singh who has admitted that another witness of seizure had not signed seizure memo in front of him and even his signatures were not present at the time of his signing such seizure memos.Therefore, prosecution has failed to prove the recovery of dead-bodies and cause of death.

Cited provisions: Section 120B in The Indian Penal Code; Section 394 in The Indian Penal Code; Section 392 in The Indian Penal Code; Section 411 in The Indian Penal Code; Section 364 in The Indian Penal Code; Section 302 in The Indian Penal Code