Judgment

JAGANNATHA SHETTY, J.:- This appeal by Special leave is from a Judgment of the Allahabad High Court dated 10 May 1978 dismissing Criminal Appeal No. 213 of 1973.

2. The appellants were convicted and sentenced under Sections 302, 364 and 210 IPC by the trial Judge. On appeal, the High Court maintained the said conviction and sentence of appellant No. (1), but reduced the same of appellant No. (2) to one under Section 201.

3. The prosecution case in brief is as follows :

Islam the deceased is the younger brother of Shabbir (PW. 1). They were not living together. The former used to live with his mother. Islam had his own share of lands measuring 16 Bighas. He was separately cultivating the same. The appellants were once his close associates. They were of bad character. So mother and brother advised Islam to part company with them. So Islam did and went on minding his own work. He was unmarried. The appellants had an evil eye on the property of Islam. They got executed a fraudulent sale deed (Ex.Ka.12). The deed was dated 15 February 1971. One Ahsan who has been examined as PW 12 has impersonated Islam before the Sub-Registrar. The deed purports to transfer the agricultural land of Islam in favour of the wife of appellant No. (1). It is said that the appellants in order to eliminate the possibility of this fraud being detected, murdered Islam.

4. Shabbir suspecting foul play of the appellants lodged a report on 21 April 1971. Zakir Ali appellant No. (2) was first arrested. He pointed out a dead body on 18 July 1971. It was recovered from a place deeply buried in a water logged pond. However, it was said to be identified as that of Islam. The identification was based on a shirt (Ex. 1) and a tanmad (Ex.2).

5. Upon the post-mortem, the Doctor was unable to give his opinion regarding the cause of death or its duration.

6. The evidence against appellants is purely circumstantial : i) motive for the crime ii) the evidence as to last seen iii) recovery of the body at the instance of Appellant No. (2), and iv) identification of the clothes with which the dead body was found.

7. We will first examine whether the motive which is of course relevant in this case has been satisfactorily established. Ex.Ka.12 is the sale deed by which the properties belonging to Islam were said to have been sold to the wife of Sardar Hussain appellant No. (1). Usman Ali (PW 11) who is the scribe of the sale deed has deposed to its contents. He has stated that one Sarfaraz (PW 20) along with the accused came to him with a request to draft the sale deed. They gave the particulars. He has written the sale deed of which the executant was Islam. In the Court, he has identified Ahsan (PW 12) as the person who impersonated Islam and put his thumb impression. He has also identified Zakir Ali-appellant No. (2) who affixed his thumb impression to the sale deed as a witness. But when Sarfaraz Hussain was examined as PW 20 in the Court, nothing was elicited about the sale deed or the persons who accompanied him to PW 11. No question was put to him as to the contents of sale deed Ex.Ka.12 or to the identification of persons who affixed the thumb impressions thereon. PW 12 has, no doubt deposed that he had put his thumb impression on Ex.Ka. 12. But the prosecution has not sent the thumb impression of the executant of Ex.Ka. 12 with the admitted thumb impression of PW 12 for expert opinion. There is, therefore, no satisfactory evidence that the sale deed Ex.Ka.12 was executed by somebody impersonating Islam.

8. As to identification of the dead body the evidence on record is equally unsatisfactory. Shabbir (PW 1) has deposed that about 14 months before, Islam was taken by Sardar Hussain and Yasin. Yasin is the father-in-law of Sardar Hussain. He has also stated when Islam went with them, he was wearing a shirt of green check and a black striped tahmad. Islam was taken on the pretext that they would get him married. He has further stated that Mian Jan (PW 2) and Sadiq (PW 3) a