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Three persons claimed to have seen the accused nearby the place of occurrence between 1.00 p.m. to 2.00 p.m. on the date of occurrence. Two of them, namely, Sanjeev Kumar Tyagi (PW-3) and Kulbhushan (PW-5) claimed to have seen the deceased being carried on a bicycle by the accused who was taking the bicycle with the deceased sitting on the handle thereof. Anil (PW-2) stated that he had seen the accused in perplexed state around 2.00 p.m. near the place from where the dead body of deceased was found. Investigation was undertaken. During such investigation, there was recovery of accused's underwear as also the undergarment the deceased was wearing. This recovery was treated to be under Section 27 of the Indian Evidence Act, 1872 (in short the `Evidence Act').

One significant factor which seems to have missed by the High Court is that there was no suggestion to either PW-3 or PW-5 that in fact they had not seen the accused and deceased together. Even no question was asked about that aspect in cross-examination. On the contrary, an irrelevant suggestion was given that though the witness and seen them together, the witness had not asked the accused as to why he was walking while carrying the deceased on the bicycle. That being so, the High Court could not have come to the conclusion that there was no credible evidence of the accused and the deceased being seen together by PWs 3 and 5. As noted above, the I.O. (PW-8) was never asked the reason for delayed examination of PWs 3 and 5. The cross examination was only on the aspect of the recovery of the underwear and undergarment of the accused and the deceased respectively.