JUDGMENT K.K. Misra, J.
1. These three appellants were tried by the 5th Additional Sessions Judge, Bareilly in Sessions Trial No. 451 of 1980 in respect of the murder of Dhani Ram, brother of the informant, allegedly committed on 15.4.1979 at about 10-11 pm in village Gonair, Police Station Meerganj, District Bareilly and have been convicted under Section 302 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment of five years under Section 201 IPC, which shall run concurrently.
2. The prosecution story, briefly stated, is that in the night of 15.4.1979 at about 10 pm Dhani Ram (deceased) had gone to look after the reaped wheat crop in his field situated in the south-east of the village and after some time the informant Kishan Lal along with his brother Jamuna Prasad and Kali Charan s/o Juvan Ram and Taulari Ram s/o Popi Ram also proceeded towards the field where the reaped crops were lying. As soon as they came out of the village they heard sound of firing from the side of flour mill (chakki) of the appellant, Nathoo Lal. All of them proceeded towards the aforesaid flour mill where Nathoo Lal armed with gun and" Chintamani and Ganpat armed with lathies were standing. When the informant inquired as to why the fire was shot, accused Nathoo Lal did not give any reply. The informant thereafter along with his brother Jamuna Prasad, Kali Charan and Joley Ram proceeded towards the field where the deceased was not found. Further case of the prosecution is that the informant gave Call to the deceased by calling his name loudly and also made search for him but no clue or whereabouts of the deceased was found. Thereafter they heard two more sounds of gun shots from the side of chakki. Further case of the prosecution is that the informant along with his associates thereafter returned to the house and next morning made search for Dhani Ram in the village as well as in the village of the relations but no clue was found and it was in the evening of 19.4.1979 when one Govind Kurmi r/o village Sindhauli informed the informant that a corpse wrapped in a blanket was lying in Bhakhra river in front of village Goola. The informant thereafter along with his co-villagers Ram Narain, Lala Ram, Rewa Ram, Dal Chand Pothi, Jamuna Prasad Sher Singh and others went near the river and found the corpse lying in the river. Since the head and face of the corpse were open, the informant and other villagers recognized the corpse as of the deceased, Dhani Ram. Further case of the prosecution is that the accused Nathoo Ram and his family members and other accused had enmity with the family of the informant for the reason that Ram Swaroop, father of Kishan Lal (informant) had lodged two reports against Nathoo Lal in the year 1976. It is alleged that Bandhu Ram, cousin of the informant, had also lodged an FIR against them 6-8 months prior to the date of occurrence for assaulting him and due to this reason they had enmity with the informant and his family on account of which the appellants had committed murder of his brother, Dhani Ram (deceased) and threw the dead body in the river. According to the prosecution case the FIR was written by the informant's brother, Pothi Ram and thereafter the informant went to the police station to lodge the same at about 9.30 pm on 19.4.1979.
3. The investigation of the case was done by Sri B.S. Tyagi, S.I. (P.W. 6). He was posted as Second Officer at P.S. Meerganj, District Bareilly. After lodging of the F.I.R. the Investigating Officer recorded the statements of first informant Kishan Lal, Sher Singh, Brij Lal and Head Moharrir, Jasveer Singh. Thereafter he proceeded for Bhakhara river near village Moola along with constable Ram Prasad Misra, Jitendra pal Singh and Manohar Lal. There he saw the dead body lying in the river at a distance of five puces from the western bank. The dead body was wrapped in a blanket and its head and face were clearly visible. The first informant and constables accompanying him took out the dead body and the first informant recognized that the dead body was of his brother. Due to lack of sufficient light Panchayatnama of the dead body could not be completed. On 20.4.79 after sunrise he inspected the dead body in the presence of Vijay Pal Singh, Lala Ram, Peetam, Sewa Ram, Ram Narayan and other and prepared Panchayatnama Ex.Ka. 6, Photo Lash Ex.Ka. 7 and Challan Lash Ex.Ka. 8. He also prepared Ex.Ka.9 site plan of the place where dead body was found. The dead body was sent to Bareilly for post mortem through constables Vijendra pal and Ram Pal Misra. He completed all these works by 9.00 A.M. and thereafter the investigation of the case was taken over by P.W. 10 Sri jay Pal Singh, Station Officer, P.S. Meerganj, District Bareilly. He has deposed that after taking investigation from t B.S. Tyagi he went to the place of occurrence on 20.4.1979 and started investigation. He interrogated Smt. Ganga Devi wife of Ram Swaroop and others on the same day. Thereafter he recorded the statement of Jamuna Prasad, Kali Charan and Toley Ram. Then he searched the houses of accused appellants Naththoo Lal, Ganpat and Chchadammi. He went at the Chakki of Naththoo Lal and made a search there also. He found an empty cartridge of 12 bore and prepared its Fard Ex. K-15. He recorded statement of Babu Ram and Khandari there. On 21.4.79 he recorded the statement of Ram Swaroop, father of the deceased and Budhdhi Nai. On 11.10.1979 he recorded the statement of Michku witness and on the same day he submitted the chargesheet Ex. Ka. 16.
4. The post mortem examination of the dead body of Dhani Ram was conducted by P.W. 5 Dr. K.S.Tewari, senior Radiologist, District Hospital Bareilly. The doctor found that the body was of average built. The body was swollen. The swollen skin was peeling off. The body was in an advanced stage of decomposition. The following ante-mortem injury was found on the dead body of deceased Dhani Ram:
Gunshot wound of entry 6 cm x 4 cm x chest cavity deep on the front of chest right side upper part just below clavicle and 6 cm from anterior axillary fold . Margins ragged blackening around margins present Directed downwards and slightly backwards.
5. On internal examination the doctor found that the 1st to 3rd ribs were fractured on right side. Right pleura was badly torn in upper part. Right pleural cavity contained clotted & fluid blood about 500 ml. 20 shots were recovered from right pleural cavity. Right lung was badly lacerated and fractured. In upper half 9 shots were recovered from right lung and one wadding piece was recovered from right lung. The doctor opined that the death was caused due to shock and haemorrhage due to aforesaid ante-mortem firearm injury. He handed over one black blanket and one underwear to constable. The doctor further opined that the death had occurred at 10-11 p.m. on 15.4.79 and there may be difference of one day in duration. He also opined that the shot was fired from close range.
6. The prosecution filed chargesheet against the accused appellants Nathu Lal, Chhiddammi and Ganpat under Section 302/34 IPC and 201/34 IPC. In their statements recorded under Section 313 Criminal Procedure Code the accused appellants pleaded not guilty to the charge and claimed to be tried. They further stated that they had been implicated in the case due to enmity. However, they did not produce any witness in defence.
7. At the trial, the prosecution in order to prove its case against the accused appellants examined ten witnesses. P.W. 6, S.I., B.S. Tyagi started the investigation of the case. Thereafter P.W. 10, S.O., Jaipal Singh took over the investigation of the case and submitted the charge sheet. P.W. 4 constable Ram Pal accompanied the S.I., Bhrahm Dutt Tyage to the Bhakhara river and took the dead body to mortuary for post mortem examination. P.W. 9 Head Constable Jaivir Singh prepared Chik F.I.R. Ex. Ka.13 and made its entry in the General Diar. Dr.K.S.Tiwari, P.W. 5 conducted the post mortem examination on the dead body of the deceased Dhani Ram. P.W. 1, Kishan Lal first informant, P.W. 2 Kali Charan, P.W. 3, Ram Swaroop, P.W. 7, Michkoo and Budhi P.W. 8 are witnesses of fact and circumstances leading to murder of deceased Dhani Ram.
8. The trial Court found the accused appellants guilty under Sections 302/34 IPC and 201/34 IPC and sentenced them to life imprisonment and R.I. for five years respectively. However, the sentences were directed to run concurrently.
9. P.W. 1, Kishan Lal first informant deposed that Dhani Ram aged about 20 years was his younger brother. At a distance of 1-1/2 furlongs from the village in the south-east direction of village there was a field on which wheat crops were standing. On the date of incident, i.e. 15.4.79 at about 10 p.m. the deceased Dhani Ram went to have a look of the. field where harvested wheat crops were lying. Shortly thereafter he along with Jamuna Prasad, Kali Charan and Toley Ram also proceeded towards the field to have a look of the field. As soon as he came out of the village, he heard sound of a firearm" shot from the Chakki of Nath'u Lal accused. He hurriedly reached the Chakki and saw all the accused appellants standing there. Accused Nathu Ram was armed with a single barrel licensed gun and Chchaddammi and Ganpat were armed with Lathis. On his inquiry about firing of the shot, Nathu Ram gave no reply. Then they proceeded towards the field which was at a distance of 1/2 furlong from the Chakki and Dhani Ram did not meet them. They gave a call to deceased Dhani Ram and made a search in the jungle but he could not be found. When they started for village, they again heard sound of two shots. For four days they searched for deceased in the relations and at other places but his whereabouts could not be known. On the fifth day, one Govind Kurmi of village Sighauli informed him that a dead body tied in a blanket was lying in southeast direction of Bhakhara river near village Moola. On this information he along with Ram Narayan, Sewa Ram, Lala Ram, Jamuna Prasad, Sher Singh etc. went there and saw that a dead body tied in a blanket was lying at a distance of five paces from the bank of the river in the water. The head and face of the dead body were open and he recognized that the dead body was of Dhani Ram and the blanket was of the deceased. The body was bloated. He lodged the report at the police station at 9.30 p.m. He further stated that he heard the sound of firing from a distance of 1-1/2 furlong. He did not see who fired the shot but only firearm shot was coming from the Chakki. No one else came on hearing shots being fired. He saw the accused appellants standing there. Then they went towards the southeast field and they were returning from the field situated in south direction, he again heard two firearm shots. He did not see the person who fired the shots but only heard shots being fired from Chakki. The place where dead body was found was at a distance of 2 miles from the village. This witness has admitted enmity with the accused Nathu Ram. It is significant that he did not lodge the report of Gumshudgi of the deceased at the police station.
10. P.W. 2 Kali Charan deposed in his evidence that on the date of incident at about 9 p.m. he along with Kishan Lal, Jamuna Prasad, Toley Ram started for the field to have a watch over the harvested wheat crops. As soon as they came out of village and reached in front of school he heard the firearm shot coming from the Chakki of Nathu Ram Pradhan. When he reached near the Chakki, he saw Nathoo Lal armed with a single barrel gun, Chchaddammi and Canpat each armed with a Lathi standing there. When they inquired about the firing of shot from Nathu Ram, he gave no reply. Then he proceeded along with others towards the field. Kishan Lal told him that Dhani Ram had come to the field but he was not found there and they searched for him. On information that a dead body was lying in the river Bhakhara, he went to see the dead body and reached at Bhakhara river at 5 P.M. The body was wrapped in a blanket but the face and head of the dead body were visible. He recognized the dead body of Dhani Ram deceased. Kishan Lal told him that the blanket was of Dhani Ram. He further deposed that before going to the field, Dhani Ram deceased had met him. It was about 8.30 p.m. He further stated that he heard the sound of first shot when he was at a distance of 150 paces and other two shots were fired after half an hour. After hearing the subsequent shots he did not go to Chakki. He further stated that he did not remain at the fields in the night and returned home at 11.30 p.m.
11. P.W. 3, Ram Swaroop is the father of the deceased Dhani Ram. He deposed that on the date of incident, Nathu Ram met him in day time and said that someone cuts electric wire of his Chakki, as a result crusher stops working and huge loss is incurred to him and if someone is seen cutting the wires, he would kill him. His doubt was towards Dhani Ram. He further deposed that at about 10 p.m. Dhani Ram deceased went to see the fields, which were at a distance of 200 yards. He heard the sound of firing coming from Chakki. After some time his son Jamuna Prasad and Kishan Lal also went to see the fields and they returned at 11 p.m. and told him that Dhani Ram deceased was not present at the field and his whereabouts could not be known. He searched for Dhani Ram deceased and when he returned on Sunday, he came to know that the dead body of deceased Dhani Ram was found in the river. He was taking food when he heard the sound of firing. It was about 11 p.m. The shot was fired about an hour after Dhani Ram went to the field. He did not depose about second firing.
12. P.W. 7, Michku Lal deposed that on 10th October, 79 i.e., after six months of the incident the accused appellants came to his house at 7 p.m. and told him in the presence of other persons whose name he could not recollect that they had killed Dhani Ram and had thrown his body in the river. They further told him that Dhani Ram used to stop the electric current of Chakki and was thus causing harassment. They further pleaded for help in the criminal case filed against them. He further deposed that he told about this fact to DAROGA JI after about six months.
13. P.W. 8, Budhi deposed in his evidence that on the date of incident he was having a watch at harvested wheat crops in the night and was present whole night at the fields. At about 4 a.m. in the morning he saw a bullock cart driven by Chchaddammi. Nathoo Lal armed with a gun and Ganpat armed with Lathi was following the bullock cart. When he inquired Nathoo Lal accused appellant he told him that his wife was ill and he was taking her to Bareilly for treatment. He saw someone covered with a blanket lying in the bullock cart. In the morning Kishan Lal met him when he was making a search for his brother. He further stated that he had heard three shots fired near the Chakki at short intervals. He further stated that he did not tell Kishan Lal about the fact that he had seen accused going with a bullock cart and did not tell others also.
14. The case in hand is based upon circumstantial evidence. Essential ingredients to prove the guilt of an accused by circumstantial evidence are: (1) that the circumstances from which the conclusion is drawn should be fully proved; (2) that the circumstances should be conclusive in nature; (3) that all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; and (4) that the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused. It is well settled that the circumstances proved must lead to no other inference except that of guilt of accused. Circumstantial evidence is very strong evidence if sound and if there is a weak link in the evidence it should be discarded. In criminal trial for murder, if evidence is only circumstantial, the duty of the Court is to see how much of circumstantial evidence is proved and whether it is sufficient for conviction or benefit of doubt is to be given to the accused. The fact that the witness is not independent and is inimical against the accused is an additional circumstance to be examined while accepting his evidence against accused. 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.
15. The question for consideration in this case is whether chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused appellants.
16. Heard Sri Tapan Ghosh, learned Counsel for the appellants and Sri S.D.Kautilya, learned A.G.A. from the side of the prosecution.
17. Sri Tapan Ghosh, learned Counsel for the appellants has pressed the appeal mainly on the following grounds:
(1) No body has seen the deceased after 15.4.79;
(2) No body has seen the actual firing;
(3) Sound of three fire arm shots were heard whereas the post mortem report shows that the deceased had received only one gun shot injury;
(4) One cartridge of 12 bore is alleged to have been recovered from the Chakki but the place from where it was recovered has not been shown in the site plan;
(5) The investigation of the case was not fair as the investigation did not care to recover the licensed arm from the possession of the accused and further the Investigating Agency did not ensure comparison of cartridge by a Ballistic Expert; and (6) Lastly, there is allegation of enmity and the witnesses have heard the shots being fired in the night of 15.4.79 but the prosecution has not cared to explain the delay in lodging of the F.I.R. which was lodged on 19.4.79.
18. The circumstances which have been taken to convict the accused appellants are (1) that on 15.4.79 the deceased Dhani Ram had gone to the wheat field at 10 p.m. to have a watch there; (2) that P.W.I Kishan Lal along with his brother Jamuna Prasad, Kali Charan, Toley Ram also went to the field after some time and as soon as they came out of the village, they heard a fire being shot at the Chakki of Nathu Ram accused. When they reached near Chakki they noticed that Nathu Ram armed with a single barrel gun, Chchadammi and Ganpat armed with Lathis were standing there. When they inquired from Nathu Ram accused about the firing, he gave no reply. Then Kishan Lal first informant and others proceed towards the field. When they reached the field, they did not find Dhani Ram deceased at the field. They searched for him but he was not at the field. When they were searching for Dhani Ram, they also heard two firearm shots. Thereafter they returned home. First informant Dhani Ram made inquiry about Dhani Ram deceased in relations and at other places but he was not found; (3) that on 19.7.79 one Govind Kurmi of village Sighauli informed the first informant Kishan Lal in the evening that one dead body wrapped in a blanket was lying in river Bhakhara near village Moola; (4) that the first informant along with Ram Narayan, Lala Ram, Sewa Ram, Dalchand, Podhi Ram, brother Jamuna Prasad and her Singh etc. proceeded to the place where the dead body was lying; (5) that the first informant and other persons found that the dead body was wrapped in a blanket whose head and face were open; (6) that the first informant and other persons recognized the dead body of Dhani Ram; (7) that P.W. 8 Budhdhi who was also having a watch on his field in the night which was at a distance of 100 yards from the Chakki of Nathu Ram accused saw a bullock cart driven by Chchadammi at 4 A.M. in the morning. Ganpat armed with Lathi and Nathu Ram armed with a single barrel gun were following the bullock cart. Going near the bullock cart when he inquired from Nathu Ram, he told him that his wife was seriously ill and he was taking her to Bareilly for treatment. He saw someone lying in the bullock cart who was covered with a blanket; and (8) that it has come in the evidence of P.W. 3, Ram Swaroop, father of the deceased that on the day of incident Nathoo Lal accused had met him and complained that some one cuts the wire of his Chakki, which results in great loss to him and if some one was found cutting the wire, he would be killed. He further stated that the accused Nathoo Lal had suspicion that the deceased was ipdulging in cutting the electric wire of his chakki. (9) That it has come in the evidence of P.W. 7 Michku that after six months of the incident all the accused appellants went to his house and made an extra-judicial confession of committing the murder of deceased Dhani Ram and prayed him to save them in the case.
19. The entire prosecution story rests on circumstantial evidence and it is to be seen as to whether the chain of circumstances as set up by the prosecution lead to the inevitable conclusion, which ruled out any other possibility and establish that the accused/appellant have only committed the alleged crime. In the case based on circumstantial evidence onus is on the prosecution to prove that the chain is complete and the circumstances must fully establish. The Apex Court in the case of Sharad Birdichand Sarda v. State of Maharastra and Ors. having analyzed its earlier decision held that in the matter of conviction based on circumstantial evidence the following conditions must be fulfilled before a case against an accused can be fully established, which are as under:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and must or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharasthra where the following observations were made :
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human possibility the act must have been done by the accused.
20. The Hon'ble Apex Court in its recent judgment in the case of State of Rajasthan v. Raja Ram while examining the scope of conviction based on circumstantial evidence observed as under:
8. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crmne must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission.The offence can be proved by circumstantial evidence also. The principal fact or factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts, which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan ; Eradu and Ors. v. State of Hyderabad ; Earabhadrappa v. State of Karnataka ; State of U.P. v. Sukhbasi and Ors. ; Balwinder Singh v. State of Punjab ; Ashok Kumar Chatterjee v. State of M.P. . The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances in Bhagat Ram v. State of Punjab. It was laid down that where the case depends upon the conclusion drawn from circumstance the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt,
21. Learned Counsel for the appellants has also placed reliance on the judgment of Hon'ble Supreme Court in the case of Pawan Kumar v. State of Haryana 2003 Cr.L.J. 3552 wherein it has been held by the Hon'ble Supreme Court that where the prosecution has failed to prove the circumstances alleged against the accused persons, it is not safe to convict the accused persons on the testimony of the other witnesses.
22. It is well settled legal position that for the conviction on the basis of circumstantial evidence each chain of circumstances relied on by the prosecution has to be fully established beyond any doubt; that the chain of circumstances, so established, should be completed and they should be consistent only with the guilt of the accused; that the circumstances should be of conclusive nature and tendency; and that the circumstances should actually exclude any reasonable hypothesis as to the innocence of the accused. Therefore, we have to examine the evidence adduced by the prosecution keeping in view the aforesaid settled legal principle.
23. In the present case two witnesses of fact produced at the trial have admitted enmity between the parties. P.W.I who is brother of the deceased has admitted in his evidence that in the year 1976 two reports were lodged against Nathu Ram. P.W.I stated in his evidence that since 1976 there is enmity with the accused and there were no terms with accused. P.W. 3 Ram Swaroop who is father of the deceased has also admitted enmity with the accused in his evidence and has stated that he lodged two F.I.Rs. against the accused appellants, one on 24.3.76 and the other on 3.4.76. Thus the enmity between the parties is admitted. The circumstances in the present case has to be seen in the light of the enmity.
24. The glaring facts of the case is that though the deceased Dhani Ram was the real brother of the first informant Kishan Lal, but no report that he was missing was lodged for five days especially when he and others heard the first shot and inquired from Nathu Ram about the firing, all the accused -appellants were found present at the Chakki. During this brief period, they could not notice the presence of deceased Dhani Ram at the Chakki. When Kishan Lal and others were at the fields, they again heard two fire shots. If the first shot was fired upon the deceased Dhani Ram and if the deceased did not succumb to his injuries after first shot was fired upon him and two more shots were fired after some time to kill him why the first informant and other could not notice the presence of the deceased Dhani Ram after the first shot was fired when a Lalten (Lamp) was there at the Chakki. More over when they heard the first shot, they inquired from Nathoo Lal accused about the firing of shot with whom his family had no terms but when they heard two more shots, they did not inquire from Nathoo Lal about the two shots fired. It was not a natural conduct on the part of Kishan Lal first informant.
25. The evidence of P.W. 8, Budhi also does not appear to be trustworthy. He has stated in his evidence that he was keeping a watch at the wheat fields in the night. But it has come in the evidence of P.W.I, Kishan Lal first informant that when he went to fields, he did not meet anyone on the way to the field or at the fields. This fact makes the presence of P.W. 8 Budhi at his fields doubtful. Moreover, it is also quite unnatural that he could not recognize the person in the bullock cart though he was resident of the same village and he did not tell this fact to Kishan Lal first informant when he came to him to inquire about Dhani Ram. It is also unnatural that after hearing the fire he did not go to the chakki though he was at a very short distance from that place. He has admitted in his evidence that the accused Ganpat was in litigation with his nephew, Mool Chand. In the cross examination though he has stated that he had no knowledge that on 8.12,1978 accused Nathoo Lal had lodged a report against his brother and nephew regarding the land of Gram Samaj, thus in the absence of any denial by him that such complaint were not lodged by the accused Nathoo Lal, there appears to be long enmity between this witness and the accused. It is also strange that though this witness had heard sound of gun shot in the night of 15.4.1979 and saw the accused persons armed with gun and lathies moving with a bullock cart wherein one person was lying covered with a blanket at about 4 am, in spite of that he did not disclose this fact to Kishan Lal (informant) when he inquired about his brother, Dhani Ram nor he disclosed this story to any villagers and for the first time narrated this to the informant in the noon of 19.4.1979 when the dead body of the deceased was recovered. He has not given any explanation as to why he did not inform about the above fact to the informant when he met him on 16.4.1979 and made inquiry about his missing brother, the deceased. Therefore, it would not be safe to rely on his statement in the absence of any corroborative evidence for convicting the appellant.
26. The so called extra-judicial confession of the accused appellants made to P.W. 7 Michku does not inspire confidence. This extra-judicial confession was made after six months of the incident and P.W. 7 Michku told about this extra-judicial confession to Daroga Ji after five months. It has come in the evidence of P.W. 7 Michku that extra-judicial confession was made to him in presence of some other persons but he could not disclose at trial the names of other persons. Besides that in the matter of extra judicial confession it is settled legal position that it cannot be used against the accused unless the Court is satisfied that it was voluntarily made and at that stage the question as to whether it is true or false does not arise if the facts and circumstances surrounding making of the confession appear to cast a doubt on the veracity or voluntariness of the confession and thus the learned trial Court has rightly did not place any reliance upon such confession.
27. Thus, on consideration of the fact and circumstances of the evidence discussed above, we are of the view, that the chain of circumstances is not complete and the links are missing. No body has seen the actual firing. The Investigating Officer has not cared to take possession of the licenced gun of the accused, Nathoo Lal nor he has cared to show the location of the flour mill (chakki) in the site plan from where the cartridge of 12 bore gun was recovered. The Investigating Officer did not take any steps to recover the licenced gun of the accused, which was allegedly used in the commission of offence for sending it to the ballistic expert to find out as to whether any fire was shot from it on the alleged date of occurrence. The motive in the present case is also of very weak nature. There is no immediate motive, which could have prompted the accused appellants to commit the crime. The extra judicial confession was recorded very late and the witness was inimical to the accused appellants. All these leads to irresistible conclusion that the prosecution has not been able to prove the chain of evidence to warrant conviction of accused-appellants.
28. From the circumstances detailed above, the chain of the circumstances is not so complete as to exclude every reasonable hypothesis as to the innocence of the appellants. More over the fact that the two witnesses, namely, P.W. 1 Kishan Lal, brother of the deceased and P.W. 3 Ram Swaroop, father of the deceased have admitted enmity with the accused-appellants makes their evidence highly doubtful and is not trustworthy. Similarly the evidence of P.W. 8 in the absence of any explanation fror not disclosing the fact that he saw the appellants on the date of occurrence moving with a bullock cart carrying a person covered with a blanket becomes doubtful. He has denied in his evidence the fact that he stated the above story of seeing the bullock cart to the Investigating Officer in his statement under Section 161, Cr.P.C. He has also not denied that there was dispute with his family members and the appellants. Therefore, for all these reasons it is difficult for us to rely solely on his evidence for maintaining the conviction of the appellants.
29. In view of the discussions made above, we find that the prosecution has not been able to put forth a complete chain of circumstances so as to prove the guilt of the accused-appellants beyond reasonable doubt and, therefore, benefit of doubt must be given to the accused appellants.
30. In the result, the appeal is allowed. The order of conviction and sentence dated 25.2.81 passed against them by Sri Ram Ji Lal, Vth Additional District & Sessions Judge, Bareilly in Sessions Trial No. 451 of 1980 under Sections 302/34 IPC and 201 IPC is hereby set aside. They are acquitted of the charges. The accused-appellants are on bail. They need not surrender to their bail bonds. Sureties are discharged.