Someshwar and Nageshwar (In Jail) vs State

Bhanwar Singh, J.—This appeal is directed against the judgment and order of September 22, 1980, passed by Vth Additional Sessions Judge, Hardoi. The two Appellants, namely, Someshwar and Nageshwar were convicted by virtue of the said judgment u/s 302 read with Section 34, I.P.C. and sentenced to Life Imprisonment. They were further convicted u/s 201, I.P.C. and sentenced to five-year rigorous imprisonment. Both the sentences were directed to run concurrently.

The prosecution story, as stated at the trial, is as follows :

Someshwar and Nageshwar are two real brOrs. being sons of Shri Ram Bajpai and residents of village Sadiyapur, P.S. Beniganj, district Hardoi. The accused Someshwar was married to Sada Pyari, since deceased, in the year 1974. She was the daughter of P.W. 5, Bachchan Lal, resident of village Daulatpur. Right from the very inception of his marriage, Someshwar was very demanding with his father-in-law Bachchan Lal. On his demand, Bachchan Lal paid Rs. 6,000 in cash as dowry and promised to transfer four Bighas of land, of course, on an undertaking by Someshwar that he would maintain harmonious relationship with his daughter Sada Pyari. About five or six months after the marriage, Bachchan Lal had alienated to Someshwar four Bighas of land but �without any written deed of transfer. However, subsequently Someshwar by deception got a Hibanama (gift-deed) executed in his favour. In the year 1979, the accused Someshwar put up fresh demands of dowry with his father-in-law to comply with. As the prosecution case is, he demanded a wrist-watch, a golden ring and a cash of Rs. 1,500. Bachchan Lal being a poor person failed to meet these demands of his son-in-law, although a little before this juncture, he had supplied a bicycle. It was alleged further that two days prior to the occurrence, Bachchan Lal had gone to the house of Someshwar and then his daughter Sada Pyari conveyed to him that if her husband�s demands of wrist watch, golden ring and cash amount of Rs. 1,500 were not fulfilled, she would be done to death by him. Bachchan Lal assured Sada Pyari to take her away to his house on Someshwar�s father Shri Ram having come back from �Parikrama�. However, on his return, Shri Ram expressed� his reluctance to send Sada Pyari, but committed to her being taken away on 4th March, 1979. Unfortunately, the very next morning Bachchan Lal came to learn that Sada Pyari was killed by her husband Someshwar and latter�s brother Nageshwar on the intervening night of 3/4 March, 1979. As per receipt of the information, she was strangulated by her neck and both her eyes were injured by some sharp-edged weapon. When Bachchan Lal arrived in village Sadiyapur, he found Sada Pyari�s dead body lying on a cot inside Someshwar�s house. The door of the room in which she was lying dead, was bolted from inside with a chain. On March 4, 1979 at about 7 a.m., the accused Nageshwar informed chaukidar of the village, namely, Nattha P.W. 1 that his wife was lying dead inside his house. However, when Nattha peeped through the space in between the two flaps of the door, he saw Someshwar�s wife lying dead on the cot. Immediately thereafter, he left for the police station and while deputing the Pradhan of the village to guard the room and the dead body, asked Nageshwar to accompany him to lodge the report with the police. Nageshwar refused to oblige. Nattha then alone reached the police station and informed the police at 11.30 a.m. about the murder of Sada Pyari. The police recorded this verbal information in the G.D.A.S.I. Jugul Kishore Awasthi proceeded to the village Sadiyapur and started investigation of the case at 1.30 p.m. On having reached at the site of occurrence, he, with the help of other villagers opened the door by removing one of the two flaps of the door and found inside the dead body of Sada Pyari lying over a cot. She was covered with a quilt. He examined the dead body and prepared the inquest report Ext. Ka-4. Then he drew the sketch of the dead body Ext. Ka-5 and prepared Challan Nash-Ext. Ka-6. The dead body was packed by him in a cloth-cover and sealed and then entrusted to constable Girish Chandra for being carried to Sadar Hospital, Hardoi for post-mortem examination. The Investigating Officer, thereafter, inspected the spot and prepared the site-plan Ext. Ka. 9. His enquiries revealed that it was a case of murder and the two brOrs., namely, Someshwar and Nageshwar had forcibly taken Sada Pyari to their Gonda situated nearby to their house, killed her there by strangulation and by piercing into her eyes some pointed and sharp-edged weapon. From there, her dead body was brought back to the room of their house, where she was found laid on a cot. A trail of blood was noticed between the Gonda and the house of the two accused. The Investigating Officer collected the ordinary and blood-soaked earth from the Gonda and the room of the accused as also from the street which connected the two sites. The two accused were reported to be absconding and all efforts to trace them out went futile. On 5.3.1979 the investigation of this case was transferred to Sri Ramashankar Pandey, S.I.P.W. 11. Sri Pandey examined the witnesses and came to learn that during the night of occurrence when the two convicts were bringing the dead body from their Gonda to the house, they had kept the dead body on a chabutara (platform) and when Surajpal Singh and Jagpal Singh witnesses questioned the two accused standing near a human body, they informed that Sada Pyari had suffered a fit and was, therefore, lying on the ground. The Investigating Officer examined the deceased�s father Bachchan Lal in village Daulatpur. The Investigating Officer succeeded in arresting Nageshwar, after a brief chase, from an agricultural field of �Arhar� where he was hiding. Someshwar was also there but he succeeded in making his escape good. On being arrested, Nageshwar confessed the crime having been committed by him and his brother Someshwar and also revealed that he could help in getting the Sooja recovered by which he and his brother had punctured the eyes of the deceased. It was thereafter that at his pointing out, a Sooja, material Ext. 1 was recovered by the Investigating Officer from inside the house of Nageshwar. A recovery memo to this effect was prepared. The other accused Someshwar later surrendered before a Court of Magistrate and when he was in the lock-up, he was examined by the Investigating Officer. On having completed the task of investigation, the I.O. Sri Ramashankar Pandey submitted charge-sheet against the two accused-Appellants before this Court.

The prosecution, during the course of trial, examined as many as twelve witnesses in support of its version. A brief resume of the witnesses may be recapitulated as thus.

P.W. 1 Nattha is the chaukidar of village Ikdhara, P.S. Beniganj. He informed the police by verbal communication that Nageshwar�s wife was lying dead inside her house. Here it is relevant to note that this witness did not refer to Someshwar�s wife even during the course of his examination-in-chief.P.W. 2 Lakshmi Narain, according to the prosecution story, had seen the two accused in appeal whispering about their scheme to cause death of Sada Pyari and he also heard them, communicating with each other and soon thereafter he heard the shrieks of Sada Pyari. He, however, left the scene of occurrence, as he was going to attend the call of nature. It is noteworthy that at the trial, Lakshmi Narain turned hostile and did not support the prosecution case. Similarly P.W. 3 Nand Kishore, P.W. 6 Udai Pratap Singh and P.W. 7 Sarju were declared hostile as they declined to depose in terms of the prosecution story. Nand Kishore was alleged to have seen the two Appellants going towards their Gonda along with the wife of Someshwar on the night of occurrence and on the very next morning he came to learn that Sada Pyari had been killed. Udai Pratap Singh was a witness of Nageshwar�s arrest and recovery of Sooja, material Ext. 1 on his pointing out, but he gave an inconsistent version as regards the place from where the weapon of attack, namely, Sooja was picked up by the accused Nageshwar and handed over to the Investigating Officer. Whereas P.W. 11 Ramashankar Pandey testified that the Sooja was recovered from the outer wall of the Kothari, Udai Prata Singh gave out that the Sooja in question had been kept inside the room, from where Nageshwar brought it out. Following his departure from the prosecution case, Udai Pratap Singh was declared hostile, but even during the course of his cross-examination by the State counsel, he confirmed that Sooja was taken cut from inside the Kothari and not from the wall of the courtyard.P.W. 4 Surajpal Singh is stated to have seen, on the night of occurrence, a human body wrapped in a cloth lying on the chabutara of Someshwar�s Gonda and the two accused standing by its side. On being curious to this situation, Surajpal Singh enquired from the two accused as to what was the matter? To this query, Nageshwar replied that Someshwar�s wife Sada Pyari had suffered a fit. On having become convinced with the averment of Nageshwar, he and his cousin Jagpal left the place with a normal advice of beckoning a doctor. However, the following morning he saw the dead body of Someshwar�s wife lying inside his house.P.W. 5 Bachchan Lal is the father of the deceased. He asserted before the trial Court that Someshwar was in the habit of demanding dowry of cash and kind and when he could not fulfil his unreasonable demand, he with the help of his brother killed Sada Pyari.P.W. 7 Sarju was on regimental duty as a guard in the village during the night of occurrence and along with him, Someshwar was expected to be on chaukidari, but the latter did not turn up.. P.W. 8 Girish Chandra carried the dead body for post-mortem.P.W. 9 Head Constable Sohan Singh had proved the G.D. report Ext. Ka-3 being issued on the oral communication of P.W. 1 Nattha.P.W. 10 Sri Jugul Kishore Awasthi is the first Investigating Officer of the said case. He prepared the inquest report of the deceased and sent it for autopsy.P.W. 11 is the second Investigating Officer, who completed the remaining part of the investigation including interrogation of the important witnesses and he had eventually charge-sheeted the two Appellants.P.W. 12 Dr. A.N. Singh, Superintendent of District Hospital, Hardoi proved the post-mortem report Ext. Ka-19.

In defence, both the accused pleaded not guilty and also alleged that they were out of village during the night of occurrence. They added that they had been falsely implicated in this case by the villagers on account of enmity.

On having weighed the pros and cons of the prosecution story and analysed the evidence of the prosecution witnesses, the learned Vth Additional Sessions Judge, Hardoi came to the conclusion that the recovery of dead body of Sada Pyari from inside the house of the two accused and their conspicuous disappearance from the village, established a strong circumstance indicating the complicity of the two accused in the commission of the crime. The learned Additional Sessions Judge also believed the prosecution story of Nageshwar being arrested by the I.O. Sri Ramashankar Pandey and on his pointing, the recovery of Sooja, material Ext. 1, a weapon which was allegedly used by Someshwar for piercing the eyes of the deceased. The motive behind the murder, namely, the dowry demand as brought forth by the father of the deceased P.W. 5 Bachchan Lal was also relied upon. The plea of alibi was rejected by the learned trial Judge. On the basis of the above referred evidence, the learned Additional Sessions Judge held the two accused brOrs. guilty u/s 302 read with Section 34, I.P.C. and Section 201 I.P.C. Accordingly they were convicted and sentenced to Life Imprisonment u/s 302 read with Section 34, I.P.C. and 5-year rigorous imprisonment u/s 201, I.P.C. as indicated earlier.

Feeling aggrieved of the verdict of conviction and sentence, the two brOrs. have come up in appeal.

It is to be seen and adjudged now as to whether the two Appellants in this appeal were guilty of the offences alleged to have been committed by them. It is significant to note that there is no ocular account giving out an eye version of the offence of murder being committed. Not a single person has come forward to state that he saw the two brOrs. causing the death of Sada Pyari. The learned trial Court has acted upon the circumstantial evidence adduced before it on behalf of the prosecution and the strongest of such evidence being the recovery of dead body from inside the house of the two accused-Appellants in appeal. It is note-worthy that when a case rests entirely on circumstantial piece of evidence, such evidence must satisfy four tests with a view to inspire a confidence therein. Firstly, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ; secondly, those circumstances be of a definite tendency unerringly pointing towards the guilt of the accused ; thirdly, all such circumstances taken collectively should form a chain of events so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and fourthly, such evidence should exclude every possible hypothesis of someone else than the accused being involved in the commission of the crime.

Now if we apply the above tests to the circumstances of the case brought forward by the prosecution and the facts sought to be proved therefrom, it would be appropriate to observe that the circumstances relied upon by the learned Additional Sessions Judge failed to stand the test of the settled principles laid above.

To take the circumstance of the dead body of Sada Pyari having been recovered from inside the house of the Appellants, it can be observed that there were strong reasons to rebut the inconclusive hypothesis of the accused having caused the death of Someshwar�s wife. The strongest of such reasons was that the room, inside of which Sada Pyari was lying dead, was bolted from inside with a chain which could not be opened except through the unnatural course having been resorted to.P.W. 10 Sri Jugul Kishore Awasthi averred in his examination-in-chief that he opened the door of Kothari by removing one of the two flaps of the door and it was only thereafter that he could sever the chain locking the two flaps. He added further that he saw the dead body of Sada Pyari lying on a cot. The two Appellants were neither inside the said Kothari nor were they available in any part of their house. They had rather gone to different stations escorting their Buas who had come to attend a Mundan ceremony in the family. Bachchan Lai, the father of the deceased admitted that such ceremony had taken place some 2-3 days before the date of occurrence. The learned Additional Sessions Judge disbelieved the theory of alibi merely because he believed other prosecution witnesses who had seen the two brOrs. standing by the side of Sada Pyari lying on a chabutara. The plea of alibi set up by the two accused was not established by the accused with a cogent piece of evidence, but that kind of failure on the part of the Appellants does not mean that prosecution would have derived some advantage out of it. It is a settled principle of law that prosecution has to succeed on the strength of its own case and evidence in support thereof.

Even if the plea of alibi did not succeed, the fact remains that the prosecution failed to prove beyond doubt that the two accused on trial before the trial Court were found involved in the commission of the crime. As the door of the Kothari was found closed from inside and it could not be opened and one of the two flaps was separated by removing it along with its axle it cannot be accepted that there subsisted circumstances leading to irresistible conclusion of the hypothesis that the accused and none else had committed the murder of Sada Pyari. In other words, it creates a room for doubt that the accused were instrumental in causing death of the deceased. Not a single witness had come forward to say that he saw the two accused inside that Kothari along with the deceased. The very fact of the door being bolted from inside leads to a pointer that there may be some one else responsible for the commission of the crime.

It was argued before us on behalf of the State that P.W. 4 Surajpal Singh had seen the two accused-Appellants standing on their chabutara during the night of occurrence and also saw a human body lying closeby. Surajpal Singh interrogated the two Appellants standing under the suspicious circumstances, but he felt convinced when Nageshwar conveyed to him that Someshwar�s wife had suffered a fit of epilepsy. Indeed this is a very very strong circumstance to drive to a reasonable hypothesis that the accused and none else were guilty of committing murder of Sada Pyari, but also, the evidence of Surajpal Singh is not trustworthy so as to establish that circumstance and resultant factor of the two accused being involved in the commission of the crime.

First of all, Surajpal Singh�s evidence suffers from bias and prejudice. As pointed out by the Learned Counsel for the Appellants, there was a long-drawn enmity between this witness and the accused on account of litigation between their fathers. The parents of the accused had succeeded to some landed property of Munnalal Krishnaram Shastri of Daulatpur village and the fathers of Surajpal Singh and Jagpal filed their objections in the mutation proceeding. Surajpal had no courage to deny these facts, although he pleaded ignorance. This is, therefore, a strong piece of circumstance to establish that there was bitterness between the two families over a long-drawn litigation, eventually won by the father and the mother of the accused.

Further, this witness and the accused persons had conflicting interest on the election to the office of Pradhan. Surajpal Singh was also a candidate in the said election and hjs opponent was Khagga Pasi who was supported by the accused�s father Shri Ram who himself won an election against Surajpal Singh�s relative Shitla Bux.

Apart above. Surajpal Singh appears to be a chance witness. He is a resident of village Ikdhara while the occurrence had taken place in village Sadiyapur. The two villages are no doubt situated within close vicinity to each other, yet it being an odd hour in the night Surajpal Singh was expected to have explained his probable presence in village Sadiyapur. According to him, he had gone to see a fair along with his cousin Jagpal and was passing through village Sadiyapur when he witnessed the two accused standing by the side of Sada Pyari lying wrapped in a cloth on their chabutara. It is significant to note that Surajpal Singh conceded that it was a dark night and he had no torch with him nor his cousin was having any other source of light. A question arises when there was no source of light, how he identified the two accused persons standing on their chabutara? Further, had he seen some human body lying close to the accused persons, he should have aroused a strong suspicion in his mind of there being some foul play. He stated categorically in para 3 of his evidence that as a matter of fact, it appeared to be a dead body lying on the chabutara. When it was so, he should have immediately informed the village Pradhan or some other responsible villagers about what he had seen. Inaction or omission on his part clearly falsifies his statement of having seen the two accused standing and a dead body lying on a chabutara.

At the same time, it is crucial to note that he met first the Investigating Officer on 4th of March, 1979 when the latter came in the village and prepared the inquest report, but he did not inform him that he had seen the two accused persons standing by the side of the dead body of Sada Pyari. This is a very strong circumstance to rebut the veracity of the evidence of this witness. He admitted that he did not disclose this ocular account to the Investigating Officer. Further he had not shown to the Investigating Officer the chabutara on which he has seen Sada Pyari�s dead body and the two accused standing nearby.

Considering the infirmities appearing in the evidence of Surajpal Singh as referred to above, we are of the decisive view that his evidence is not worth-credible. Accordingly, we hold that the ocular account of Surajpal Singh as given by him before the trial Court fails to establish a circumstance unerringly pointing out the hypothesis with the guilt of the accused.

The prosecution brought forward Anr. circumstance with reference to the accused Someshwar�s duty of guarding the village streets during the night of occurrence.P.W. 7 Sarju, a village man of Sadiyapur village, asserted that on the night of occurrence, he along with some other villagers was patrolling the village areas and the accused Someshwar was expected to have joined him but he did not turn up to fulfil his commitment. It is a common experience that when the criminal activities in rural areas are on increase, the village man collectively decide to watch and protect the personnel and properties of the village. This kind of regimental duty is settled amongst the villagers and it was probable under this scheme that Someshwar was assigned to supervise the village streets along with Sarju and Ors..P.W. 7 Sarju averred himself to be in supervisory control of the village but his testimony lacks credit for the obvious reason that if it was so, he would have been interrogated by the Investigating Officer, but he said that he was not examined by any Police Inspector and further disowned his statement purported to have been recorded u/s 161, Code of Criminal Procedure by the Investigating Officer. Evidently, this witness appears to be a got-up witness with a view to prove conspicuous absence of the accused Someshwar from the patrolling duty on the night of occurrence. It was probably in this background that Sarju disclosed that he did not summon the accused Someshwar to join him for patrolling. Accordingly, we are of the view that the circumstance sought to prove the absence of Someshwar from the collective job of supervising the village streets fails to inspire a confidence in its veracity.

The fact that a trail of blood was noticed by the Investigating Officer Sri Jugul Kishore Awasthi between the Appellant�s Gonda and house is also not free from reasonable suspicion for many reasons. Firstly, the blood soaked earth collected by the Investigating Officer was not sealed in the bags in which it was collected. Secondly, the said blood-stained earth was not sent for chemical examination with a view to establish that it was human blood. Thirdly, A.S.I. Sri Jugul Kishore Awasthi explained that there were blood like stains on the street between the Gonda and the house of the accused ; this appears to indicate that even Sri Awasthi was not sure of such stains being stains of human blood and his statement to the effect that he treated some stains to be as blood stains is purely an imagination. This positively rules out the prosecution theory of the deceased being first taken to Gonda and then brought back by the accused persons to their house and kept on a cot. Otherwise, also, it does not strike to reason as to why the accused would have carried away Sada Pyari from house to Gonda for causing her death and then bringing the dead body back. Obviously in doing so, there was a risk of their being intermeddled by the villagers, particularly those on collective patrolling duty.A.S.I. Awasthi�s statement that blood was found on Gonda floor is also not worthy of credit. Neither the area where the blood was found, was described in the memo, nor the blood stained earth collected from the Gonda was sent for chemical examination. No plausible reason has been brought forward by the Investigating Officer Sri Ramashankar Pandey for having not obtained Chemical Examiner�s report. Therefore, the prosecution story of there being blood on the Gonda floor and on the street between the Gonda and the House of the accused, is not at all trustworthy and hence unacceptable.

The evidence of Nattha, P.W. 1 Chaukidar of the village is full of infirmities. In his entire testimony, he has not uttered a word that Someshwar�s wife was killed by someone or he. while peeping through the closed door of Someshwar�s house, saw the dead body of Sada Pyari. It is worth-mentioning that according to oral communication as recited in Ext. Ka. 3, submitted at the police station by Nattha. it had been conveyed by Nageshwar that the latter�s wife was lying dead inside the Kothari, the door of which was closed. He had seen the dead body through the space of two flaps of the door and corroborated that Nageshwar�s wife appeared to have died. It is further significant to note that Nattha was examined about one and a half years after the occurrence and still while in the witness-box, he deposed that Nageshwar�s wife was lying dead on a cot inside the Kothari. Not only that, he received this wrong information from none else than accused Nageshwar himself, but he had also seen it with his own eyes that Nageshwar�s wife was lying dead inside the Kothari. Palpably the evidence of Nattha seems to be nothing but a tissue of lies. For a while it could be believed that Nageshwar conveyed a wrong information to Nattha that his wife was dead, but when Nattha had an opportunity to see the dead body, he was expected to have identified Sada Pyari who was the wife of Someshwar and not of Nageshwar. What is more surprising is that not an iota of explanation has come forward in the evidence of Nattha that there was some confusion about the identity of the deceased, and as indicated above, despite lapse of a period of one and a half years, he testified that he had seen Nageshwar�s wife to be as dead. Specific reference was made to the recitals of communication in the G.D. report and he maintained that he gave out the said information. It was for the prosecution to have removed any confusion in this regard, but it remains a mystery as to why the prosecution did not consider it appropriate to wash out the infirmity on the point. There remains no doubt from the evidence of Bachchan Lal P.W. 5 that his daughter married to Someshwar was found dead, but doubt rests shrouded as to why Nattha did not clarify or bring an explanation about the identity of the deceased. Resultantly an inference can be drawn that Nattha�s evidence is under the cloud of suspicion and, therefore, it can well be observed that his evidence fails to establish that he had seen Sada Pyari�s dead body on receipt of the information from the accused Nageshwar. In other words, any conversation between Nageshwar and Nattha on the issue is disbelieved and outrightly rejected.

Considering all what has been discussed above, we are of the decisive opinion that the circumstantial evidence on record fails to stand the four-fold test leading to an irresistible inference and conclusion that the accused/Appellants and none else were guilty of having caused death of Sada Pyari. The circumstances enumerated above lack to establish the strong fact of accused�s complicity with the crime.

Even on motive and medical grounds, there is no harmony between the prosecution version and the evidence adduced in support thereof.

So far as motive is concerned, neither in the G.D. report Ext. Ka. 3, nor in the written report Ext. Ka. 10, an iota of explanation about dowry demand being the principal motive of Sada Pyari�s killing was referred to. It is important to mention that if there was some ill-will between Someshwar and his wife on the point of dowry, Nattha being a village-man as well as Chaukidar would have certainly known about it, but he did not convey anything about it to the police officers at the earliest opportunity. Further, written report Ext. Ka, 10 was drawn by A.S.I. Sri Awasthi after collecting all relevant facts and circumstances from the site of occurrence and the surroundings prevailing in the village. If that was a fact, Sri Awasthi would have certainly come in touch with the deceased�s father Bachchan Lal, who was present in the village on March 4, 1979 and even a brief conversation between the two would have disclosed that Someshwar was dowry-minded person who killed his wife because she could not fetch for him dowry in cash and kind from her father Bachchan Lal. But, it is pertinent to observe that no such reference appeared in the written report Ext. Ka. 10.

What is further crucial on the point is that P.W. 5 Bachchan Lal was admittedly present in the village on March 4, 1979 but for the reasons best known to him, he kept quiet and did not disclose to the police Inspector investigating the case that his daughter Sada Pyari was victimised by Someshwar on account of her being incapable of bringing dowry items demanded by her husband.P.W. 5 Bachchan Lal while testifying in support of the prosecution story, admitted that he did not communicate with the Police Inspector although he met him and other police personnel. He has not given any explanation for this omission. In the past also, i.e., before the occurrence, Bachchan Lai had not lodged any report with any authority that his son-in-law tortured his daughter Sada Pyari by making unreasonable dowry demands. When he was confronted with this omission during cross-examination, he stated in para 11 that since he was not in his normal senses following the death of his daughter, he kept quiet and did not inform the Police Inspector that his daughter Sada Pyari had in fact become the victim of his dowry crazy son-in-law. Had there been some substance in this story, it would have been quite natural, rather an outburst of Bachchan Lal, by virtue of which he would have revealed his mental agony to the Police Inspector. Disclosure made a few days after can easily be termed to be an afterthought not worth being relied upon. We, therefore, reject the theory of dowry demand being the main motive for the commission of the crime.

As far as the medical evidence is concerned, it is relevant to note that the prosecution story does not get corroboration from the evidence of P.W. 12 Dr. A.N. Singh who testified that ante-mortem injuries of the deceased could not be inflicted by the Sooja, material Ext. 1. The doctor added further that the wounds of the victim were cut wounds and could not have been caused by Sooja, the weapon alleged to have been recovered at the pointing out of accused Nageshwar. Death by strangulation was no-doubt established by the medical evidence but there is not an iota of evidence on record to prove that the accused had strangulated the deceased.

It is unfortunate that heinous crimes like this go unpunished and the social order suffers sometimes on account of the investigation lapses and at times due to the Investigating Officers� genuine inability to fetch truthful evidence of facts and circumstances, but the administration of justice has to follow the eternal guiding principle that 99% offenders for want of evidence, may go scot-free without any punishment, but a single innocent person should not be punished. Accordingly, we are inclined to hold that the prosecution miserably failed to establish beyond doubt the chain of circumstances indicating the positive involvement of the accused in the commission of murder of Sada Pyari.

The crux of the matter is that both the accused deserve to be acquitted of the charges levelled against them u/s 302 read with Section 34, I.P.C. and Section 201, I.P.C.

In the result, this appeal is allowed and the verdict of conviction and sentence under appeal is set aside and both the accused Appellants are acquitted of the charges levelled against them. During pendency of appeal, they were on bail, to which they need not surrender. Their bail-bonds are cancelled and sureties discharged.