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4. On 19th May, 2009, inquest papers were prepared. Post- mortem on the dead body of the deceased was conducted by PW2, Dr. Komal Singh and, thereafter, the dead body was handed over to the relatives of the deceased. After post-mortem, Dr. Komal Singh handed over two sealed parcels containing clothes of the deceased and blood gauge along with the sample seal which were taken into possession vide seizure memo Ex.PW-17/A. During the course of investigation, statement of witnesses were recorded. Exhibits were sent to FSL and after completing investigation, charge sheet was submitted against the accused Mohd. Shahid Khan Khan whereas separate challan was filed against accused Mohd. Irshad Alam before Juvenile Justice Board.

6. After meticulously examining the evidence led by the prosecution and the other material on record, vide impugned judgment, the appellant was held guilty and sentenced as mentioned above. The findings have been assailed by the appellant by filing the present appeal.

7. We have heard Ms. Rakhi Dubey, Amicus Curiae for the appellant and Sh. Sunil Sharma, learned Additional Public Prosecutor for the State/respondent.

8. It was submitted by learned counsel for the appellant that as per the prosecution, the appellant along with Mohd. Irshad Alam committed the murder of Mohd. Naushad on the intervening night of 16-17th May, 2009. However, as per the post-mortem report, time since death was 72 hours, meaning thereby, the death had taken place between 12:15 pm to 1:20 pm on 16 th May, 2009. Moreover, as per the prosecution case, PW-15 Mohd. Rustam informed PW-1 Farzana in the morning that deceased was in the company of the appellant and JCL-Irshad Alam. Thereafter the dead body was recovered near Govt. Dust Bin and was identified by PW-1. However, PW-1 failed to inform the police regarding the factum of deceased being in the company of the accused persons. She simply informed the police that the deceased had gone to work in the morning a day before and had not returned. This shows falsity of the case against the appellant. It was further submitted that prosecution is heavily relying upon the testimony of Mohd. Rustam for proving the circumstances of last seen. However, the same is doubtful, firstly, in the light of the post- mortem report, secondly the name of the accused person was not informed at the first instance, thirdly, testimony of PW-15 is contrary to testimony of PW-1 Farzana and PW-7 Naseem. PW-1, Farzana does not state that she had gone to search the deceased in the morning. Similarly, Naseem fails to state regarding the quarrel between the deceased and the accused prior to the incident. The case is based on circumstantial evidence. The chain of evidence is not so complete as to show that within all human probability the act must have been done by the accused. The prosecution has failed to prove motive for commission of crime. As per the case of prosecution, the deceased used to abuse the accused persons who used to feel offended and also extended threat to the deceased, however, no complaint was filed in this regard. As per the post-mortem report, the deceased was strangulated. Thereafter, the post-mortem injuries were also caused. It is hard to believe that any person would murder in such a brutal manner just because the deceased used abusive language. Moreover, the cause of death of the deceased was strangulation. However, prosecution failed to explain as to with which material, the strangulation was done. Prosecution had shown the recovery of a broken blade at the instance of the appellant from the bushes near the spot which was an open space accessible to all. The spot was duly inspected by the crime team when the dead body was recovered. Thus the recovery becomes doubtful. Under the circumstances, it was submitted that the prosecution has not been able to establish its case beyond reasonable doubt and the accused is entitled to be acquitted of the offence alleged against him.

11. We have given our considerable thoughts to the respective submissions of the learned counsel for the parties and have perused the record.

12. It is an undisputed case of the parties that deceased Mohd. Naushad met a homicidal death. Post-mortem on the dead body of Mohd. Naushad was conducted by PW-2 Dr. Komal Singh who gave his report, Ex.PW2/A. As per the post mortem report, following were the observations and findings:-

External appearance: Both eyes closed, mouth open, congestion NAD, Cornea Hazy, nails bluish, hue (Cyanose), face and hair are embedded, covered with pieces of grass etc, bleeding from the mouth.

28. It has come on record that the deceased was short tempered and since the accused persons were working under him they used to be reprimanded by the deceased quite on and off, and therefore, the accused persons were nurturing an ill-will and grudge against him. Even prior to the incident, they had threatened the deceased to kill him and had also telephonically threatened his wife to kill the deceased. The fact that the accused were so furious and annoyed and were nurturing such hatred towards the deceased is reflective from the post-mortem report which goes to show that even after strangulating the deceased, there were as many as four post-mortem injuries in the shape of cut throat mark on right anterior lateral of the neck, the penis was cut, there was abrasion on the right sub scapular and another cut incised wound on the left little finger. As such, motive to commit the crime stands proved not only from the ocular testimony of the prosecution witnesses but also from the medical evidence. Last seen