Shahajad @ Golu Shaukat Ali vs The State Of Maharashtra

ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)

By this appeal, the appellant challenges the judgment and order of sentence passed in Sessions Case No.180/2017 by the Additional Sessions Judge-14, Nagpur dated 16.06.2023 by which the appellant/accused Shahajad @ Golu Shaukat Ali is convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (for short, ‘IPC’) and sentenced to suffer imprisonment for life and to pay fine of Rs.15,000/- and in default of payment of fine, he shall suffer simple imprisonment for six months.

Brief facts which are necessary for disposal of the appeal are as under:-

The informant Niyaz Ahmed Sheikh Rasul Qureshi on 18.12.2016 approached to the Jaripatka Police Station and lodged report alleging that on 18.12.2016 at about 3.00 pm. to 4.00 p.m. his son was playing games on mobile phone on NIT ground at the relevant time, the accused Shahajad Ali came from back side and gave a blow of knife on the person of his son at his waist and thereby caused injuries. This fact was informed to the informant by his another son Rehan Qureshi. He immediately rushed to the spot. However, his son was already taken to the hospital. He saw a pair of slippers of his son, knife and blood stains at the spot. He immediately rushed to the hospital. However, it was disclosed to him that his son succumbed to the injuries as he has sustained the injuries towards right side kidney. He immediately approached to the police station and lodged report. On the basis of the said report, police have registered crime against the present accused.

After registration of crime the wheels of the investigation started rotating. During investigation, the Investigating Officer has conducted the spot panchanama, arrested the accused, seized the clothes of the deceased as well as clothes of the accused. He also seized the articles which were found at the spot of incident. The memorandum statement of the accused was recorded and at his instance the clothes were seized. After completion of the formality of the investigation he submitted the charge-sheet against the accused.

The learned Sessions Judge framed the charge vide Exh.24. The accused pleaded not guilty and claimed to be tried. In support of the prosecution case, the prosecution has examined in all 14 witnesses, who are as follows:-

Besides oral evidence prosecution placed reliance on oral report Exh.31, FIR Exh.32, Spot panchanama Exh.34, Inquest Panchanama Exh.49, Seizure memo Exh.50 and 51, Memorandum statement of co accused Exh.52, Seizure memo Exh.54, Postmortem report Exh.58, Query report Exh.60, the Marg Report Exh.67, Requisition to medical officer for obtaining blood samples Exh.70, Arrest form of accused Exh.71, Property seizure memo Exh.78, Requisition to CA Exh.80, CA reports Exh. 83 to 85, CA report as to the viscera Exh.86.

On the basis of the oral as well as documentary evidence prosecution claimed that prosecution has proved its case beyond reasonable doubt. The defence of accused is of total denial and false implication due to the previous enmity The incriminating evidence is put to the accused in order to obtain his explanation by recording his statement under Section 313 of Code of Criminal Procedure Code.

The Trial Court after recording the evidence and on appreciation of the same came to the conclusion that prosecution has proved its case beyond reasonable doubt and convicted the accused as aforestated.

Being aggrieved and dissatisfied with the same present appeal is preferred by the accused on the ground that the evidence of eye witnesses is not trustworthy, cogent and reliable. The statements of the eye witnesses are recorded at a belated stage and no explanation is put forth by the Investigating Officer for recording belated statement. No blood stains were found on the person of the accused. The weapon was also not recovered at the instance of the accused. The marg report shows that deceased was brought to the hospital by one Salman whereas evidence of eye witnesses disclose that brother of the deceased namely Mohammad Rajik has taken him to the hospital. Thus, inconsistent evidence is adduced by the prosecution and relied by the trial Court. In view of that, accused deserves acquittal.

Heard learned counsel for the appellant who reiterated the contentions and taken us through the entire evidence and submitted that evidence of PW-3/Firoz Khan, PW-4/Sheikh Rehan Sheikh Qureshi and PW-5/Mohd. Salim is not at all trustworthy. Their cross-examination disclose that they are not stating regarding the presence of each other. The genesis of the actual incident is also not narrated by them. The statements of the eye witnesses were also recorded at belated stage. Thus, the evidence which is adduced by the prosecution is not sufficient to prove the guilt of the accused beyond reasonable doubt.

Learned APP submitted that there is a direct evidence to connect the present appellant with the alleged offence. Mere fact that their statements were recorded belatedly by the Investigating Officer is not sufficient to discard their testimony or warrant acquittal of the accused. Therefore, the prosecution has established the charges against the accused. In view of that, the judgment and order of sentence deserves to be maintained.

Learned counsel for the appellant and learned APP for the State have taken us through the entire evidence. After going through the evidence first and foremost question which requires to be determined is whether the death of the deceased Mubassir Ayaz Qureshi is homicidal one?. To prove the said fact the prosecution mainly placed reliance on the evidence of PW-9/ Dr. Rajesh Chintalwar who testified that on 19.12.2016 he received the requisition from Jaripatka Police Station for conducting postmortem in Crime No.748/2016. During the course of postmortem, he as well as his colleague Dr. P.L. Saigaonkar noted injuries on the person of the deceased which is mentioned in column No.17 which are as follows:-

His further evidence shows that the injuries mentioned in column No.22 and the injury No.1 mentioned in column No.17 associated with internal injuries in column No.20 and 21 are sufficient to cause death of the deceased. The probable cause of death is hemorrhage and shock due to injury sustained. Accordingly, they have prepared the postmortem notes Exh.58. His further evidence shows that on 03.01.2017 he received a letter from Investigating Officer by which crime weapon was forwarded to him and his opinion was sought. On examination of the said weapon, he has given his opinion that the injuries mentioned in postmortem report are possible by the weapon examined by him. He has also described the weapon in his report alongwith the diagram. The requisition issued to him was Exh.59 and his opinion is at Exh.60. He also deposed that during the postmortem he has collected samples including stomach and loop of intestine along with contents, part of liver, part of spleen and part of each kidney forwarded to CA through Jaripatka Police Station.

Though cross-examination was carried out by the learned defence counsel, however, entire cross-examination is only in the denial form. Thus, as far as the evidence of PW-9 medical officer is concerned, as to the cause of death, which was not shattered during the cross-examination. Thus, as far as medical evidence is concerned, it remains intact as to the cause of death.

Now it is well settled that evidence of medical officer is not only to opinion evidence but also his evidence is in the nature of direct evidence as he had an opportunity to see the injuries on the person of the deceased. A medical witness, who performs a postmortem examination, is a witness of the fact though he also gives an opinion on certain aspects of the case, this preposition of law has been stated by the Hon’ble Apex Court in the case of Smt. Nagindra Bala Mitranand Another vs Sunil Chandra Roy And Another reported in 1960 SCR (3) 1, wherein the Hon’ble Apex Court observed that “the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person.” Thus, the testimony of the medical witness is very important and it can be safely accepted. The evidence adduced by the medical officer corroborated by the inquest panchanama shows that deceased died homicidal death.

This ratio is reiterated by the Hon’ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh vs. the State of Bihar reported in 2022 LiveLaw (SC) 402 and stated that the evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitness, it is also independent testimony, because it may establish certain facts, quite apart from other oral evidence. It has been reiterated by this Court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged.

Thus, the prosecution has succeeded in proving that death of the deceased is homicidal one.

Now it has to be ascertained whether death of the deceased is caused by the accused by means of sharp weapon like knife?. To establish charge against the accused prosecution mainly placed reliance on three eye witnesses namely PW-3/Firoz Khan, PW-4/Sheikh Rehan and PW-5/Mohd. Salim Rashid Ansari. Though prosecution has examined PW-1/Niyaz Ahmed Sheikh Rasul Qureshi who is father of the deceased and lodged the report, however, he is not an eye witness of the said incident.

The evidence of PW-3/Firoz Khan shows that deceased was his friend. His murder was committed on 18.12.2016 in NIT ground. On that day, he was on the same ground watching cricket, at the relevant time, deceased was sitting on two wheeler vehicle and playing game on mobile phone. The accused gave a blow towards left side of his stomach. Thereafter Rehan and Salim tied the injury of deceased and they all took the deceased towards the square. At the square they met brother of the deceased Rajik who took deceased in the hospital. The deceased died on the way when they were proceeding to the hospital. He has identified the knife which was shown to him. His cross-examination shows that he is unable to state the area of that ground. His cross-examination shows that he was playing cricket and from him at a short distance the deceased was playing game on mobile phone. His cross-examination further shows that on the day of incident itself his statement was recorded by police. Again he was called by the police on 24.12.2016 and he visited the police station. On 24.12.2016 no enquiry was made with him by police and his statement was not recorded on 24.12.2016. Omission to the extent that he has stated before the police that when he heard the commotion of the deceased thereafter he saw towards the deceased is admitted by him. Thus, attempt was made to show that his presence at the ground itself is suspicious as he is unable to tell the area of ground. More over as per his evidence, his statement was recorded by police on 18.12.2016 itself, whereas, the statement on record is of dated 24.12.2016.

Another witness PW-4/Sheikh Rehan is also an eye witness. His evidence is also to the extent that on 18.12.2016 when he was playing game along with deceased by sitting on the motor cycle, at the relevant time, some boys were playing cricket. At about 3.30 p.m. to 4.00 p.m. accused came from back side, removing the knife and gave a blow on the right side of stomach of the deceased. He has identified the accused. He further stated that they have tied the cloth piece around the stomach of the deceased and deceased was taken on the two wheeler till square. Thereafter deceased was taken to the hospital by auto rickshaw. He has accompanied the deceased till Mayo hospital. Doctor declared the deceased dead and thereafter he returned back home. As per his evidence his statement was recorded on 20.12.2016. His cross-examination shows that deceased was sitting towards his right side on motor cycle and accused came from the back side and gave a blow on the deceased. He denied that he has removed the said knife from the body of the deceased and stated that he only assisted the deceased to remove that knife and thereafter tied the cloths piece around the injury. His cross-examination further shows that their clothes were also stained with blood. He accompanied the deceased towards Mayo hospital. They have not made any complaint at Police Chowki which was available at Mayo Hospital. His evidence also shows that his statement was also recorded on the day of incident.

PW-5 is the another eye witness namely Mohd. Salim. As per his evidence on 18.12.2016 he was watching the match played by small children. The deceased was also there at the spot who was sitting on the bike and he heard the shouts and saw the accused running from the spot. Thereafter, he left the spot. The brother of the injured deceased took him outside the ground on the vehicle and thereafter he was taken to Mayo Hospital by auto rickshaw. His cross-examination shows that he was at a distance of 3 to 4 feet. from the deceased. The ground is a square in size. He further admits that persons were sitting on the bike and the other person came behind from them and stabbed the deceased. He further admitted that when he was watching the match, he heard shouts and therefore, his attention was drawn towards the deceased. He saw the back side of that person who was running ahead. He has not made an attempt to catch the person who was running from the spot i.e. assailant. The wall around the ground is in a dilapidated condition. On the basis of above said cross-examination attempt was made to show that when actual assault was made he has not witnessed the incident. He has seen the assailant from the back side and therefore, it is not possible for him to identify the assailant.

Besides the oral evidence of these eye witnesses evidence of PW-1/Niyaz Qureshi father of the deceased who lodged the report, whose evidence reveals that he came to know about the incident from his son Rehan Qureshi. Therefore, he immediately rushed to the spot. However, his son was already removed to the hospital. He has witnessed the pair of foot wears of his son, knife and blood stains at the spot of incident. Thus, he is not eye witness of the incident. On the basis of the information received by him from his son he deposed and lodged the report.

The medical evidence which is already discussed in the earlier part of judgment the evidence of PW-9/Dr. Rajesh Chintalwar Medical Officer further shows that the weapon knife was referred to him to obtain his opinion and he has given his opinion that injuries sustained by the deceased are possible by the weapon like knife. As far as the evidence of medical officer is concerned, which is not challenged during the cross-examination.

PW-2/Mohammad Sharif Kadar Qureshi acted as a panch on the spot. As per his evidence, he was called by the police to act as a panch. In his presence police have seized knife, knife cover, pair of footwear, blood stains of soil and simple soil by drawing pancanama which is at Exh. 34. He has identified the said articles before the Court. His cross-examination shows that he has not received any notice from the police to act as a panch. During cross-examination it came on record that said muddemal was sealed by the police in his presence. The contents of the panchanama to the extent of seizure of the articles is narrated by this witness.

PW-6/Sameerkumar Tabhane is the another panch in whose presence co-accused made memorandum statement. However, PW-6 has not supported the prosecution case as accused No.2 is not before this Court and he is already acquitted. Therefore, it is not necessary to discuss his evidence.

PW-7/Gyankumar Singh is also panch acted on inquest panchanama. As per his evidence he was called at Mayo Hospital in mortuary. The panchnama as to the dead body of the deceased was carried out in his presence. The clothes of the deceased were seized i.e. T shirt, one pant, Gamchha and underwear of the deceased which were seized and sealed by the police in his presence. Accordingly, panchanama Exh.50 was drawn. The nail samples and blood samples of the deceased are also seized in his presence. The clothes of the deceased are at article C,F and G. He further testified that on 26.12.2016 he was called in Jaripatka Police Station. According to him accused namely Golu i.e. present accused was present who made memorandum statement but he is unable to tell the contents of the said statement due to lapse of time. The said statement was exhibited as Exh.52. He has not stated anything about the recovery at the instance of present appellant. His cross-examination also shows that he has not received any notice to remain present to act as panch. The rests of the cross-examination is only in the denial form and not much incriminating material is elicited from said cross-examination.

PW-8/Jaffar Husain Qureshi is also formal witness in whose presence the vehicle Activa was seized. Admittedly, the seizure panchanama as well as evidence of PW-8 nowhere discloses that any blood stains were found on the said vehicle which was used by accused to flee from the spot. The vehicle on which deceased was taken was not seized.

PW-10/ Keshav Wagh who was an Investigating Officer whose role in the investigation was to the extent that he has taken entry about the information received from Control Room that there was murder at Kamgar Nagar. The said entry is at Exh.63. Thereafter he went to the spot of incident. Out of the people present at the spot he requested two persons to act as a panch. Accordingly in presence of two panchas he drawn the spot panchanama and seized articles like pair of footwear, one knife, knife cover and blood stained soil and simple soil. His cross-examination is only in the form of suggestions which are given to them.

PW-11/Shivshakar Khedekar is the another Investigating Officer who received the information from the Control Room that somebody assaulted to one person with knife and the injured is lying in pool of blood in NIT ground at Kamgar Nagar. He also received another call from Samta Nagar and therefore, he along with API Mr. Wagh went to the spot. The father of the injured thereafter lodged the FIR. The FIR was recorded by him and on the basis of said FIR he registered the crime. His cross-examination shows that the relatives of the informant came along with him for lodging the FIR. The contents of the FIR was given by the father of the deceased.

PW-12/Vijay Nikose is also ASI, Police Head Quarter, Nagpur who stated that on 18.12.2016 he was on duty at chowki situated in Mayo Hospital, Nagpur. He gave one intimation to Jaripatka Police Station pertaining to the patient brought in casualty of Mayo Hospital, who has sustained the some injuries. The letter is at Exh.67. His cross-examination shows that suggestion was given to him that he was not on duty, but he denied the said suggestion. The information which he has recorded shows that one Salman Qureshi @ Samad Qureshi has given information that when injured had been to NIT Ground at Kamgar Nagar one boy by named Golu assaulted the deceased by sharp weapon and this information was received by said Salman through his friend, therefore, Salman went to Kamgar Nagar ground wherein the deceased was lying in a pool of blood and therefore, he brought deceased at Mayo Hospital in casualty but he was declared dead. Thus, this information shows that one Salman Qureshi has given information at Mayo Hospital when injured was brought to the hospital that one Golu has assaulted the deceased by sharp weapon and this information was given to him by one Raju and therefore, he had been to the spot when deceased was found in a pool of blood and therefore, he brought the deceased at casualty.

PW-13/Rajesh Thakur and PW-14/Ishwar Hanwate are Investigating Officers. PW-13 stated that team of Unit-5 of Crime Branch brought the accused Shehjad at Jaripatka Police Station and custody was given to him by API of Crime Branch, Nagpur.

PW-14 is the Investigating Officer who has investigated the crime. His evidence shows that he has drawn inquest panchanama in presence of panch and thereafter sent a dead body for the postmortem examination. The accused was brought to the police station. He has seized the clothes of the accused as well as his samples by drawing panchanama. Another accused was also arrested by him. His evidence further shows that the seized muddemal was sent to C.A. along with letter on 16.01.2017 vide Exh.80. After completion of investigation he submitted charge-sheet against the accused. His cross-examination shows that he has recorded statement of witnesses after about 2-3 days from the date of incident. He admitted that on 18^th and 19^th December, 2016 the inquiry was not made with any of the witnesses by him. He also admitted after arrest of the present accused the statements of the witnesses of this crime were recorded. Statement of PW-3 was recorded on 24.12.2016 and statement of PW-4 Sheikh Rehan was recorded on 20.12.2016. He stated that he is unable to recollect whether he made inquiry with those witnesses as to whether they were in Nagpur or outside Nagpur during said period. He stated that there was no delay in recording their statement. His evidence further shows that date of the seizure of muddemal is 18.12.2016 and 19.12.2016. However, he has deposited the muddemal in muddemal room of Jaripatka Police Station on 16.01.2017. Thus, from the cross examination it was brought on record that despite the witnesses were available on 18.12.2016 their statements were recorded on 20.12.2016 and 24.12.2016. Thus, there is a delay in recording the statement.

On appreciation of the entire evidence on record the entire case of the prosecution is based on the direct evidence of PW-3, PW-4 and PW-5. As per evidence of these witnesses they were on the ground when the alleged incident has taken place. Whether these witnesses are trustworthy witnesses? Their evidence is to be appreciated in the light of marg report. The marg report is registered on the basis of the information given by Salman Qureshi. Neither PW-1 father of the deceased nor PW-3 to PW-5 have referred the said Salman in their evidence. As per evidence of PW1 he was informed by his another son Rehan Qureshi about the said incident. Whereas as per PW-3 in his presence accused has assaulted the deceased. He has not stated about the presence of PW-4 at the spot of incident. Similarly, PW-5 also not stated about the presence of PW-3 at the spot of incident. But PW-3, PW-4 and PW-5 stated that they have taken the injured in the hospital on the motor cycle of PW-3. As per evidence of PW-3 he took the injured on motor cycle till square and thereafter brother of the deceased namely Rajik has taken him to the hospital. He has not stated that brother of deceased namely Sheikh Rehan Sheikh Qureshi was also along with him and said Sheikh took the deceased to the hospital. The evidence of these witnesses shows that they have taken the injured till square and thereafter injured was taken to the hospital in Auto rikshaw. Evidence of PW-4 shows that he has accompanied the injured in Mayo Hospital. Similarly, PW-5 has also stated that he was along with PW-4 for taking the injured in the hospital. Whereas the marg report Exh.67 shows that one Salman @ Samad Qureshi approached to Police Chowki at Mayo Hospital and disclosed that deceased had been to the NIT ground for playing, at that time one Golu assaulted the deceased by means of sharp weapon and this fact was informed to him by friend of deceased by name Raju. Therefore, he immediately went to the NIT ground wherein deceased was found lying in the pool of blood and therefore, he brought the deceased in the Mayo Hospital and admitted him in casualty. Thus, complete contrary story is brought on record Vide Exh.67. Admittedly, this Salman Qureshi or the friend of deceased namely Raju are not examined by the prosecution.

The law as to the appreciation of evidence is settled. The appreciation of ocular evidence, wherein there is no straight jacket formula. The appreciation of ocular evidence is a hard task. While appreciating the evidence of witness approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawback and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy. The material thing which is to be seen whether those inconsistencies go to the route of the matter. While appreciating the evidence of the relatives great weightage is to be given on the principle is that there is no reason for them not to speak the truth and shield the real culprit.

In the light of the above well settled principles, if the evidence of PW-3, PW-4 and PW-5 is examined in the light of the marg report which shows that marg report is completely silent about the presence of these witnesses at the spot of incident. Exh.67 shows that when Salman Qureshi after receipt of the information went at the spot of incident, he found deceased lying in the pool of blood and therefore, he brought him to the hospital whereas evidence of PW-3, PW-4 and PW-5 shows that they have immediately brought the deceased to the hospital after the alleged incident as they have witnessed the incident.

The evidence of PW-4 shows that they have taken the injured in the hospital initially on two wheeler Honda Splender which was not seized by the Investigating Officer to ascertain whether there were blood stains or not?. PW-4 has stated that their blood stains clothes which were not seized by the police during investigation. They have not approached to the police chowki at Mayo Hospital though they have brought the deceased to the hospital. They have also not stated about presence of Salman who has registered marg. Thus, in the light of this inconsistent evidence the presence of these witnesses at the spot of incident itself is doubtful. It is pertinent to note that neither PW-3, PW-4 nor PW-5 could state the area of the ground where they were sitting. This assumes importance because they are the resident of nearby area they were sitting on that ground allegedly at the time of incident but they are unable to tell any other fact except the assault on the deceased. As already observed that their presence at the spot of incident itself is doubtful in the light of Exh.67.

The statement of these witnesses are also recorded belatedly though alleged incident has occurred on 18.12.2016. The statement of PW-3 was recorded by the Investigating Officer on 24.12.2016. Statement of PW-4 /Sheikh was recorded on 20.12.2016. Statement of Mohammad Salim was recorded on 23.12.2016. These witnesses are cross-examined on the aspect of their presence. PW-3 specifically stated that on 18.12.2016 itself his statement was recorded by police. The said statement is not included in the investigation papers. PW-14 specifically stated that his statement was recorded on 24.12.2016. His cross-examination shows that he was very well present at his home after incident and he was called in the police station on 24.12.2016. Similarly statement of Sheikh Rehan was recorded on 20.12.2016 who has also stated during cross-examination that his statement was recorded twice. One on the date of incident and 2^nd on 20.12.2016. As far as his statement on the date of incident is concerned, which is not a part of investigation papers. Similarly the statement of Mohammad Salim was recorded on 23.12.2016. The cross-examination of all these witnesses shows that they were very well present in their home after the incident.

PW-14/Investigating Officer was cross-examined on this aspect and he could not explain why there is a delay in recording their statements though the witnesses were available. He specifically admitted that he has not made inquiry with any of the witnesses on 18^th and 19^th December, 2016.

In the case of State of U.P Vs. Satish, (2005) 3 SCC 114, which is referred in the recent judgment by the Hon’ble Apex Court in the case of The State of Madhya Pradesh Vs. Balveer Singh, Criminal Appeal No. 1669/2012 decided on 24.02.2025, wherein it is observed that, “it is to be noted that the explanation when offered by I.O. on being questioned on the aspect of delayed examination, by the accused has to be tested by the Court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses, who were examined belatedly. It may not have any effect on the credibility of prosecution’s evidence tendered by the other witnesses.”

Thus, primarily it was for the accused to question the investigating Officer to explain the delay in recording the statements of witnesses. Admittedly, in the present case, the IO was not cross-examined on the aspect of delay in recording the statements and the explanation given by Investigating Officer is not a plausible explanation. The evidence of these eye witnesses specifically shows that they were very well available and thereafter also their statements were not recorded. On this count also the prosecution case becomes doubtful.

Admittedly, the articles from the spot of incident were seized on 18.12.2016. The clothes of the deceased were seized on 19.12.2016. The clothes of the present accused were also seized on 20.12.2016. However, the said articles were forwarded to CA on 16.01.2017. The cross-examination of PW-14 shows that during the said period, the said muddemal articles involved in the crime were lying in the custody of muddemal room of Jaripatka Police Station. The said muddemal was sent to CA after about 28 days. The prosecution has not adduced any evidence that during this period the articles were kept in such condition that there was no possibility of tampering the same. The chain of custody itself is not established by the prosecution. The scientific evidence Exh.83 shows that the knife which was seized from the spot, blood stain soil and simple soil, clothes of the deceased, half T shirt and underwear were stained with blood of blood group ‘B’. No blood stains were found on the clothes of the present accused. Blood group of the deceased is ‘B’. Thus, as far as the incriminating evidence is concerned, there is no evidence that any blood stains were found on the person of the accused.

After carefully considered the evidence adduced by the prosecution witnesses the inconsistent evidence of eye witnesses with the marg report filed Exh.67, no blood stains found on the clothes of the accused, chain of custody of the muddemal articles was not established. Delayed recording of statement of the eye witnesses without any explanation and scientific evidence nowhere shows any blood stains on the clothes of the accused. Thus, there is no incriminating evidence to connect the present appellant/accused with the alleged offence. It is well settled that prosecution has to prove the case beyond reasonable doubt against the accused. Burden is on the accused to prove the charges on the basis of direct evidence or circumstantial evidence in order to justify the inference of guilt. The inculpatory facts must be proved against the accused to show that it was only the accused who has committed the crime. If the evidence is so strong against the accused as to leave only a remote possibility in his favour which can be dismissed with sentence “of course is possible” but not in the less probable the case is proved beyond reasonable doubt.

In the present case, the evidence adduced by the prosecution is not consistent. It is not corroborated by the other circumstantial evidence also. Thus, the prosecution miserably failed to prove the charges against accused beyond reasonable doubt and therefore, the judgment of the trial Court deserves to be quashed and set aside by allowing the appeal.

In view of that, we proceed to pass the following order:-

Pending application/s, if any, shall stand disposed of accordingly.