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2. In brief, the prosecution‟s case is that on the night intervening 24/25.04.2003 at 00:35 hours Rameshwar Goswami, brother of the deceased (Ghanshyam) reported by DD No.2A Ex.PW27/A that Ghanshyam, aged about 35 years, 5‟ 7" height, fair complexion, who was wearing striped blue shirt and light blue trousers and khaki shoes, had left in his Tata Spacio Sumo (2000 model with engine no.4975826K27 772578 chassis no.421055K22 927295) with three passengers, booked by Amar Travels, Sector-1, Avantika. He had taken the three passengers to Hathras and Agra and was expected to return on 20.04.2003, but failed to return till that date.

12. The case of the prosecution being based on "last seen" and circumstantial evidence, it is necessary to refer to the testimony of material witnesses examined by the prosecution to appreciate the contentions raised before us.

13. PW-1 Smt. Suman‟s (wife of the deceased) statement was about the arrival of her husband on 18th April at about 7.00/7.30 PM with three passengers in his TATA Sumo. He told her that he was going to Hathras with three passengers and would return by 20.04.2003 in the evening. He took with him some clothes and other necessary items in a red coloured bag. He failed to return on the due date. They continued to wait for 2-3 days and then on 25.04.2003 they got the FIR registered. She also stated that she identified the deceased through photograph Ex.PW1/A shown by the police. She also identified the three persons when they were produced in Tis Hazari Court. She also identified TATA Sumo Spacio bearing registration No.HR- 16-C-1104 (Ex.P1) which was attached with Pooja Travels, Sultanpuri.

14. PW-3 Sh. Rameshwar Goswami - brother of the deceased also deposed about the visit of the deceased to his house on 18.04.2003 to collect his belongings as he was taking the three passengers to Hathras and going out for three days. He was expected to return on the evening of 20.04.2003. He saw all the three appellants sitting in the TATA Sumo when his brother was inside the house, packing necessary articles and clothes in a red coloured bag for the journey. He also stated that his brother was wearing a black dial HMT watch and gold plated silver chain with an „OM‟ locket.

42. Statement of PW-3 Sh. Rameshwar Goswami also proved that he was summoned to Tihar Jail and asked to wait till he called in for identification but subsequently he was informed that TIP was refused by the suspects. In these circumstances, he had no occasion to see them in the Court before their refusal to take part in TIP. It is pertinent to note that when the deceased visited his house to collect his necessary items before proceeding to Hathras and Agra, the three passengers in the Sumo were seen by PW-1 Smt. Suman and PW-3 Sh. Rameshwar Goswami in normal course. So far as PW-2 Sh. Rameshwar Prashad Rathi is concerned, these appellants visited his office twice and had sufficient time to interact with him in the forenoon as well as later in the evening. PW-1 Smt. Suman, PW-2 Sh. Rameshwar Prashad Rathi and PW-3 Sh. Rameshwar Goswami correctly identified all the three appellants to be the man who hired the deceased‟s vehicle on the fateful date to go to Hathras and Agra. None of these witnesses during their cross examination stated that before being called for TIP, they were shown the appellants in PS Rohini or any other place. Even if it is assumed for the sake of arguments that PW-1 Smt. Suman and PW-3 Sh. Rameshwar Goswami did not have enough opportunity to see the three passengers sitting in the TATA Sumo Spacio that would not apply to PW-2 Sh. Rameshwar Prashad Rathi who is an independent public witness instrumental in getting the vehicle booked for the three appellants on that day. His testimony in this regard remains unchallenged.