(1.) The death in the instant case, according to the post- mortem report, took place by reason of strangulation. The dead body was lying in the agricultural field hutment of one Genda. The same having been discovered, the brother of Genda, namely, Raja Ram (PW3) reported discovery of the dead body on 22 nd September, 1998. While reporting the discovery, it was stated that the dead body of an unidentified person is lying at the said hutment. After the dead body of the victim was taken into custody, the same was sent for post-mortem.
(2.) Post-mortem was conducted on 23 rd September, 1998, when the doctor conducting post-mortem opined that the death has taken place 1 to 2 days from the date and time of conduction of post-mortem. On 26 th September, 1998, the father of the victim lodged a First Information Report, where it was stated that on 16 th September, 1998, the victim left for the house of her sister situate at Daudbasi, but even after expiry of three days, he did not return. As such, the father of the victim had sent Sahjad (PW5) on 19 th September, 1998 to look for him at the house of the sister of the victim. PW5 reported that, upon reaching the house of the sister of the victim, he came to learn that the victim is at Village Basedi. PW5, accordingly, went to Village Basedi and reached there at around 9/10 PM on 19 th September, 1998. PW5 then reached the Laksar Railway Station, where he met the appellants and, thereafter, he returned, but the victim did not return. He, accordingly, searched for the victim in the houses of relatives. While doing so, he came to learn from one of his relatives Tahir (PW 7) that on 20 th September, 1998 at about 5 PM victim was seen de-boarding a bus at Landhora Bus Station in the company of the appellants. Thereafter, he came to learn about discovery of a dead body, whereupon he came to the Police Station and identified the photographs and the clothes of the victim and, thus, he lodged the First Information Report.
(3.) In course of evidence, PW 5 deposed that, after having had reached Village Basedi at around 9/10 PM of 19 th September, 1998, he along with the victim came to Laksar Railway Station, when they met the appellants. The victim had conversation with the appellants, whereupon, appellants invited the victim and him to accompany them, when, while the victim accompanied them, he did not. At that, appellants held out that they will reach home before he reaches home. He, then, returned home by bus and narrated the same to the mother of the victim. While this part of the evidence was put under Section 313 of the Code to the appellants, it was held out that PW5 saw the appellants at Laksar Railway Station on 20 th September, 1998, while a reading of the evidence would suggest that the said incident took place on 19 th September, 1998 itself. Further, in cross-examination, PW5 held out that he reached home in the evening. If PW5 reached Basedi around 9/10 PM of 19 th September, 1998 and then accompanied the victim to Laksar Railway Station and, there, met the appellants, how could PW5 returned home in the evening of 19 th September, 1998? If PW5 returned home on 20 th September, 1998 in the evening, then what PW5 was doing in the night of 19 th September, 1998 has not been attempted to be explained. In course of evidence, PW7 said that on 20 th September, 1998 at 5 PM, he saw the victim in the company of the appellants de-boarding a bus at Landhora Bus Station. This evidence was not put to the appellants under Section 313 of the Code of Criminal Procedure. Therefore, the last seen evidence of the victim, alleged to be in company of the appellants, was not put to the appellants under Section 313 of the Code. That appears to be a serious misconduct of the trial warranting remission of the matter. However, in the event, the matter is remitted back from the stage of Section 313 of the Code of Criminal Procedure, having regard to the nature of defence taken, there is every likelihood that the appellants will deny the same. Though, it has not been suggested what benefit will the prosecutor, in the instant case, the father of the victim, will gain by unjustly accusing the appellants, but the fact remains, that is not at all material in the matter of holding a person guilty of a crime punishable under any provision of the Code of Criminal Procedure. It is the duty of the prosecution to prove to the hilt that the appellants are guilty of having committed the crime alleged to have been committed by them. Therefore, at the best, there is one circumstance against the appellants that they were last seen in the company of the victim at 5 PM of 20 th September, 1998. According to the post-mortem report, the death took place either on 21 st September, 1998 or on 23 rd September, 1998. No attempt was made to investigate, where the appellants were in the night of 20 th September, 1998. Nothing has been brought on record of the Court as to the distance between Landhora Bus Station and the hutment fromwhere the dead body was recovered. The prosecution has not attempted to make any endeavour to establish that there was any motive on the part of the appellants, which will intensify their intension to kill the victim. The relationship between the victim and the appellants was not established, so as to cast an obligation upon the appellants to speak up having regard to the fact that they were in the company of the appellants about 12 hours before the death of the victim. Therefore, no adverse inference can be taken also against the appellants in the instant case. In the absence thereof, there is only one link in the chain, that is last seen evidence, but no other link of the chain is present.;