JUDGMENT 1. - Accused Harji Ram has been convicted under sections 302 and 460, IPC and sentenced to imprisonment for life on the first and three years' rigorous imprisonment with a fine of Rs. 500/- on the second count by the learned Sessions Judge, Chum vide his judgment dated May 12, 1979. The accused has come up in appeal to challenge his convictions and sentences. The incident is alleged to have taken place at about 11.00 or 11.30 P.M. on November 17, 1976 in village Seruna district Bikaner in which two persons viz., Budha Ram Jat and his wife Mst. Dhanni were gunned to death. 2. Briefly stated, the prosecution case is that Budha Ram and his wife Smt. Dhanni along with their sons and daughters were living in village Seruna. Budha Ram had one brother Ramuram. Ramuram was married with the sister of Akha Ram Jat (co-accused but acquitted by the trial Court.) Ramuram deserted her. On account of that, Akha Ram committed the murder of Ramuram. Akha Ram was tried for that murder but was acquitted. On the death of Ramuram, his all properties including the house and agricultural lands came in possession of the deceased victim Budha Ram. Magha Ram who was also tried along with the appellant was the real brother in law of Akha Ram. The appellant and Magharam were colleague in R.A.C. Bn., Manipur. It is suggested that Akha Ram was not happy with Budha Ram because the latter came in possession of the properties of Ramuram. He, therefore, made a plan to finish Budha Ram and the members of his family. For this he took the aid and help of Magha Ram and the appellant. 3. In the night of November 17, 1976 Budha Ram was sleeping in the court-yard of his house while his wife Smt. Dhanni was sleeping in the Kotha. At about 11.00 or 11.30 P.M., Smt. Dhanni, on hearing the gunshot got awakened. She switched the electric light and opened the door of her Kotha. As soon as she opened the door, she noticed two persons (Akita Ram being one of them). One of them was tall while the other was short in stature. Akha Ram had a pistol with him. He fired a shot at Smt. Dhanni which hit her on the right side of the chest. Thereafter both the miscreants disappeared. Smt. Dhanni raised cries. One of them was tall while the other was short in stature. Akha Ram had a pistol with him. He fired a shot at Smt. Dhanni which hit her on the right side of the chest. Thereafter both the miscreants disappeared. Smt. Dhanni raised cries. PW 4 Uda Ram, on hearing the gun-shot and cries, went running to the house of the victims. He there found Budha Ram lying dead with gun-shot injuries on his body. Smt. Dhanni was still alive. He asked her as to what had happened. She told him that two persons had come, one was having a torch with him while the other had a fire-arm. One of them was tall and the other was short in stature. The tall man fired the shots. Uda Ram (PW 4) went to PW 3 Kesaram. the deceased Budha Ram was the nephew of Kesaram. Udaram (PW 4) informed Kesaram that his nephew had been shot. Kesaram and his brother Khema Ram along with Udaram went to the house of victims Sanwat Singh also reached there on being informed by Kesaram. Smt. Dhanni was still alive. On being asked, she narrated the same story of gun shots to them. PW 3 Kesaram went to Pollee Station, Dungargarh and verbally lodged report Ex. P 18 of the occurrence at about 7.30 A.M. on November 18, 1976. The police registered a case under sections 302, 307 and 460, IPC. The investigation was taken up by the Assistant Sub-Inspector for Banney Singh (PW 28). He took Dr. Dugar (PW 25) with him and went to the place of occurrence. Smt. Dhanni had not died till then. Her statement Ex. P 53 was recorded by the Investigating Officer in the presence of Dr. Dugar. On the advice of Dr. Dugar, Smt. Dhanni was taken to P.B.M. Hospital, Bikaner for treatment but she did not survive and passed away at about 8.10 P.M. on November 19, 1976. The Investigating Officer inspected the site, prepared the inquest report of the dead body of Budha Ram and seized the blood-stained soil. He also noticed some foot-prints in the courtyard and Southern portion of the victim's house. He took the moulds of three foot-prints from there by using the plaster of paris. One empty shell of the cartridge (Article 5) was also found at the place of the incident. It was seized and sealed. He also noticed some foot-prints in the courtyard and Southern portion of the victim's house. He took the moulds of three foot-prints from there by using the plaster of paris. One empty shell of the cartridge (Article 5) was also found at the place of the incident. It was seized and sealed. The post mortem examination of the dead body of Budha Ram was conducted by Dr. Dugar (PW 25). In his opinion, the cause of death of Budha Ram was into the thorax caused due to rupture of heart and lungs by gun shot and was of ante mortem in nature. The post mortem examination report issued by him is Ex. P 55. The autopsy of the dead body of Smt. Dhanni was conducted at Bikaner by the Medical Jurist Dr. R.S. Gehlot (PW 27). In his opinion, the cause of her death was syncope due to hemorrhage caused by the gun-shot injury found on her body. The injuries were ante mortem. The post mortem examination report issued by him is Ex. P 62. 4. The appellant was arrested on November 28, 1976 vide arrest memo Ex. P 38. Magha Ram and Akha Ram were also arrested. In consequence of the informations furnished by the appellant Harji Ram, one 303-pistol, six live cartridges and one spent cartridge (all marked as article 10) were recovered from his house and a pair of Sandals marked as Article 15 was recovered from a place behind the door of his house. It transpired during investigation that the appellant was serving in RAC Bn., Manipur. He remained on leave from August 30, 1976 to October 19, 1976 and even thereafter he did not join the duty. 5. The three moulds of foot-prints taken on the spot, the pair of sandal of the appellant, the pistol along with live-cartridges, spent cartridge found on the spot were sent for scientific analysis and comparison to the State Forensic Science Laboratory and Finger-print Bureau, Jaipur. The opinion received from the experts is that one chance shoe impression found on the spot, of which the moulds were taken, was found similar with the sole of the right sandal of the appellant. So also, the pistol recovered at the instance of the appellant was found serviceable. The opinion received from the experts is that one chance shoe impression found on the spot, of which the moulds were taken, was found similar with the sole of the right sandal of the appellant. So also, the pistol recovered at the instance of the appellant was found serviceable. It was also found that two cartridges, the empty of one of which was found on the spot and the empty of the other was recovered in consequence of the information furnished by the accused, were fired from the appellant's pistol which was recovered at his instance. On the completion of investigation, the police submitted a challan against Magba Ram and the appellant in the Court of the Chief Judicial Magistrate, Churu. The learned Chief Judicial Magistrate also took cognizance against Akha Ram and summoned him. The learned Chief Judicial Magistrate, thereafter, committed the case for trial to the Court of Sessions Judge, Churu. The learned Sessions Judge framed charges under sections 302/34, 460/34 and 392/511, IPC against all of them, to which they pleaded not guilty and demanded the trial. Denouncing the whole prosecution story as false and fabricated, each of them c1aimed absolute innocence. In support of its case the prosecution examined 29 witnesses and filed some documents. In defence, Akha Ram examined two witnesses. The appellant adduced no evidence. On the conclusion of trial, the learned Sessions Judge found the charges as not proved against Magha Ram and Akha Ram. They were consequently acquitted of the offences they were charged with. However, the learned Sessions Judge found the charges under sections 302 and 460, IPC established against the appellant. He was consequently convicted and sentenced as mentioned at the very out set. Aggrieved against hic conviction and sentence, the accused Harji Ram has taken this appeal. 6. We have heard Shri K.C. Gaur learned counsel appearing for the appellant and Shri Niyazuddin Khan, the learned Public Prosecutor. We have also gone through the case file carefully. 7. Mr. Gaur appearing for the appellant did not challenge the cause of death of the two victims Budha Ram & Smt. Dhanni and rightly so in our opinion. We have gone through the testimony of Dr. Dugar (PW 25) and Dr. Gehlot (PW 27) as well as the post-mortem examination reports prepared by them. 7. Mr. Gaur appearing for the appellant did not challenge the cause of death of the two victims Budha Ram & Smt. Dhanni and rightly so in our opinion. We have gone through the testimony of Dr. Dugar (PW 25) and Dr. Gehlot (PW 27) as well as the post-mortem examination reports prepared by them. We find no reasons to distrust the opinion of these two doctors relating to the cause of death of the two deceased-victims. The death of Budha Ram and his wife Smt. Dhanni was homicidal caused by gun-shot-injuries. 8. Before proceeding further we may point out that there is no direct evidence of any eye witness against the appellant. The appellant was convicted on the basis of circumstantial evidence. In order to establish the charges against the appellant, the prosecution adduced the following sets of evidence: 1. PW 4 Uda Ram has seen the appellant and co-accused Magha Ram near about the place of occurrence; 2. the appellant and Magha Ram hired a taxi-car at Bikaner and went in it from Bikaner to village Set una; 3. the appellant was a constable in RAC Bn., Manipur and remained on leave from August 30, 1976 to October 19, 1976 and even thereafter never joined the duty, arrested at Bikaner on November 28, 1976; 4. the pair of sandals (article 15) was recovered in consequence of the information furnished by the appellant whilst under police custody. One of the three chance shoe impressions referred to as A-3 in report Ex. P 71 of the Fingerprint Bureau, Jaipur and of which mould was taken, was found similar with the sole of the right sandals (Article 15); 5. the spent cartridge (Article 5) found on the spot and the spent cartridge recovered in consequence of the information furnished by the accused were fired from the pistol recovered at the instance of the appellant and 6. the bullet (Article 4) found inside the body of Budha Ram could have been fired from the pistol recovered at the instance of the appellant. 9. The learned Sessions Judge found nothing incriminating in the first two sets of evidence. The evidence relating to the first two sets was held untrustworthy and unreliable. the bullet (Article 4) found inside the body of Budha Ram could have been fired from the pistol recovered at the instance of the appellant. 9. The learned Sessions Judge found nothing incriminating in the first two sets of evidence. The evidence relating to the first two sets was held untrustworthy and unreliable. But the learned Sessions Judge was, however, of the opinion that the remaining four sets of evidence (referred to as 3, 4, 5 and 6 above) stood well proved and were sufficient to connect the appellant with the murder of Budha Ram. These four sets of evidence, according to the learned Sessions Judge unerringly pointed out that Budha Ram was gunned to death by the appellant. 10. Mr. Gaur appearing for the appellant made a scathing criticism of the approach of the learned Sessions Judge and contended that the conviction is bad and unsustainable. It was argued that the four sets of evidence taken into consideration by the court below in convicting the appellant did not stand proved and were wholly insufficient to warrant the conviction. It would be proper to take-up his contentions at seriatim. 11. The first contention raised by Mr. Gaur is that though the appellant was not on duty from August 30, 1976 to the date of his arrest, this circumstance in itself does not show his complicity in the commission of the crime. His remaining absent on duty is a neutral circumstance and no importance should be given to it. The contention is not without force. The fact that the appellant was not on duty and remained absent from August 30, 1976 till he was arrested, in itself furnishes no incriminating material against him. It is only a circumstance which may be taken into consideration to show that he was not at Mainpur on his duty but elsewhere. I This fact will have to be kept in mind while evaluating the other sets of evidence. 12. It was next argued by Mr. Gaur that the pair of sandals (Art. 15) was wrongly taken as recovered in consequence of the disclosure statement made by the appellant. It was argued that the evidence led in to prove this recovery and information was discrepant and hence unreliable. 12. It was next argued by Mr. Gaur that the pair of sandals (Art. 15) was wrongly taken as recovered in consequence of the disclosure statement made by the appellant. It was argued that the evidence led in to prove this recovery and information was discrepant and hence unreliable. It was further argued that there is no evidence on record worth to mention that the pair of sandals (Art. 15) is of the appellant or that he used to wear it or that it was in his possession when it was recovered. The appellant was arrested on November 28, 1976 vide arrest memo Ex. P 38. Whilst under police custody he made the disclosure statement Ex. P 52 before the Investigating Officer Hanuman Singh (PW 24) at about 10.30 A.M. on December 9, 1976. It is alleged that in consequence of the said disclosure statement the appellant took the Investigating Officer and the Motbirs to his house and took out the pair of sandals (Art. 15) lying on a Chabutari situate on the left side of the main gate. The pair of sandals was seized and sealed. The seizure memo is Ex. P 42. The prosecution has examined PW 17 Bheek Singh who was one of the Motbirs of the aforesaid recovery. It was argued by Mr. Gaur that there is wide discrepancy between the versions of recovery given by PW 17 Bheek Singh and PW 24 Hanuman Singh. It was argued that according to PW 24 Hanuman Singh the investigating officer sandals were recovered lying on a Chabutari situate contiguous in the left of the main door of the house of the appellant whereas according to Motbir PW17 Bheek Singh, it were recovered from one of the rooms of the house of the appellant. The sandals were lying concealed in a stack of grass. In cross-examination Bheek Singh (PW 17) reaffirmed that the pair of sandals (Art. 15) was recovered from the grass stack lying a in room. His attention was invited to portion C to D of seizure memo Ex. P 42 in which it has been written that the pair of sandals was recovered lying on a Chabutari coniguous to the main gate of the house of the appellant. The witness was positive on his stand and stated that the aforesaid portion C to D in Ex. P 42 was wrongly written. P 42 in which it has been written that the pair of sandals was recovered lying on a Chabutari coniguous to the main gate of the house of the appellant. The witness was positive on his stand and stated that the aforesaid portion C to D in Ex. P 42 was wrongly written. There is, thus, vital discrepancy between the statements of the Motbir PW 17 Bheeksingh and the Investigating Officer PW 24 Hanuman Singh. The statements of these two witnesses cannot be reconciled as according to them it is not certain as to from which place the pair of sandals (Art. 15) was recovered. 13. Assuming now that the pair of sandals (Art. 15) was recovered in consequence of the information furnished by the accused as recited in seizure memo Ex. P 42, the pertinent question for consideration is whether the prosecution has been able to connect this pair of sandals with the commission of offence. Now, there is absolutely no evidence on record to show or I suggest that this pair of sandals (Art. 15) belongs to the accused or he used I to wear it or is otherwise connected with it in any manner. The prosecution has led no evidence on these vital questions. Not only so, no attempt was made during investigation by the Investigating Officer to find out whether this pair of sandals (Art. 15) fits in the feet of the appellant. There is again no evidence to show this somebody has seen the appellant wearing this pair of sandals. Evidence again is lacking to show that the pair of sandals belongs to him. 14. The learned Sessions Judge dealing with this point held the pair of sandals to be of accused for the reason that in the disclosure statement Ex. P 52 the appellant stated that he used to wear this pair of sandals. The actual relevant words mentioned in Ex. P 52 are : ftudks eSa ifgurk gwWaA The learned Sessions Judge, by this sentence, conclude that the pair of sandals (Art. 15) was of the accused and he used to wear that. The learned Public Prosecutor also contended on the basis of the aforesaid statement of the accused that it must be taken as granted that the pair of sandals (Art. 15) belonged to the accused and he used to wear it. The learned Public Prosecutor also contended on the basis of the aforesaid statement of the accused that it must be taken as granted that the pair of sandals (Art. 15) belonged to the accused and he used to wear it. We are unable to agree with the approach of the learned Sessions Judge and the submission of the learned Public Prosecutor. It is well fettled that only that much information furnished by the accused is admissible under section 27 of the Evidence Act which distinctly leads to the discovery of a fact. The use of the phrase "as relates distinctly to the fact thereby discovered" in section 27 of the Evidence Act is of vital significance. The word "distinctly" confines the information which may be proved within certain strict limits. Only that portion of the information is admissible which is the immediate or proximate cause of the discovery of the fact. Anything which is not connected with the fact as its cause is not admissible. The statement of the accused ftudks eSa ifgurk gwWaA in disclosure statement Ex. P 52 is not the information which leads to any discovery within the meaning of Section 27 of the Evidence Act. A similar situation arose in Prabhu v. State of Uttar Pradesh, AIR 1963 SC 1113 . The statement of the accused in that case was that the blood stained shirt and Dhoti belonged to him. Their lordships of the Supreme Court held that such a statement is not admissible in evidence under section 27 of the Evidence Act fot the simple reason that such a statement does not lead to the discovery of any fact. Therefore, the statement of the appellant ftudks eSa ifgurk gwWaA in the disclosure statement Ex. P 52 is not admissible in evidence and cannot be read against him. 15. The way and the manner in which the comparison of the chance impression and the specimen impression took place are also open to grave criticism. According to PW I Sanwat Singh PW I6 Goturam, PW 19 Sanwar Ali H.C. Police and PW 28 Eanney Singh, A.S.I. some foot or shoe impressions were found at the scene of occurrence at places marked by digit 12 to 20 in site plan Ex. P 12. Castes of three impressions out of them were taken with the aid of plaster of Paris. P 12. Castes of three impressions out of them were taken with the aid of plaster of Paris. Now, during investigation no castes of the sole of the (Art. 15) were taken The report of the fingerprint bureau Ex. P 71 shows that the chance shoe impression moulds were compared with the sole of the right sandal of the appellant. This method of comparing accidental impression with the sole of the sandals itself is highly improper and undesirable and is open to grave risks. Such a comparison should generally be avoided. Foot impressions vary considerably according to circumstances under which they are made. Foot-prints made when a person is walking slowly or fast or running slowly or fast or jumping, all create differences which are material. It was, therefore, necessary on the part of the investigating agency that the appellant was made to wear the pair of sandals (Art. 15) in order to find out whether they fit in his feet. After doing so the accused should have been asked to walk with the sandals (Art. 15) in his feet and then the castes of the impressions caused so by the walking of the appellant should have been taken. The chance impression moulds and the specimen moulds so taken should have been forwarded to the Finger-print Bureau along with the pair of sandals (Art. 15) for comparison. No such course was adopted by the Investigating Officer. In the book "Criminal Investigation" Sweet and Maxwell Limited, London Edition 1962 Chapter XI (Footprint and other impressions), the following passage appears on page 287 : "When impressions are taken of footwear for comparison purposes, it is most important to reconstruct as far as possible the conditions under which the mark found at the scene of crime was made." The procedure has also been laid down in the Rajasthan Police Rules, 1965 as to how the moulds of footprint for comparison are to be taken. The relevant passage in rule 6.26 lays down the procedure as under : "In making moulds for production as evidence the following precautions should be observed : (a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds. The relevant passage in rule 6.26 lays down the procedure as under : "In making moulds for production as evidence the following precautions should be observed : (a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds. (b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting. (c) After the procedure described in sub-rule (2) above has been completed a mould should be prepared in the presence of the magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the magistrate or witnesses when still setting. (d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court." These rules, thus, clearly lay down that the specimen mould of the footprint of the suspect should be prepared in the presence of the Magistrate. The emphasis is on the taking of the specimen castes of the footprints of the suspect in the presence of the magistrate. It is, thus, clear that what is of importance is that the specimen footprint of the suspect must be taken and that control impression should be compared with the chance impression found on the scene of occurrence. The presence of the Magistrate or witnesses has been stressed in these rules for the reasons that it may not be open to the accused to later on contend that no impressions of his footprint for comparison were taken. 16. In the instant case, the investigating agency has utterly failed to make a compliance of these rules. We, therefore? hold (1) it is not certain whether the pair of sandals (Art. 15) was discovered in consequence of the information furnished by the appellant, (2) there is no evidence that the pair of sandals (Art. 15) is of the appellant or he used to wear them and (3) the method of comparison of the chance impressions with the control impressions is not proper. The method adopted is full of grave risks. The result is that the evidence relating to the comparison of the shoe impression found near-about the place of occurrence furnishes no incriminating circumstance against the appellant. 17. The method adopted is full of grave risks. The result is that the evidence relating to the comparison of the shoe impression found near-about the place of occurrence furnishes no incriminating circumstance against the appellant. 17. The remaining two sets of evidence relate to the use of fire-arms. According to the prosecution, the spent cartridge (Art. 5) was found at the scene of occurrence. It was picked up by Sanwat Singh (PW 1) and presented to the Investigating Officer Banney Singh (PW 28). It was seized and sealed. The seizure memo is EX. P 6. After his arrest the appellant made the disclosure statement on December 9, 1976 (Ex. P 51) before the Investigating Officer Hanuman Singh (PW 24). In pursuance to the said disclosure statement, the appellant took the Investigating Officer and the Motbirs to his house and took out one country-made 303-bore pistol, six live cartridges and one spent cartridge (all marked as Article 10 and the cartridge was also marked Article 11) which was lying concealed in the stak of Gawar chaffs heaped in his Kotha facing South and presented them to the Investigating Officer. All these articles were seized and sealed. The seizure memo is Ex. P 41. The spent cartridge (article 5) found on the spot and the aforesaid articles marked Article 10 were sent to the State Forensic Science Laboratory, Jaipur for examination. On examination it transpired that the cartridges Article 5 and Art. I 1 were fired from 1 mm country-made pistol received there in the laboratory. The report of the Forensic Science Laboratory is Ex. P 74. On the post mortem examination of the dead body of Budha Ram, one bullet was found in his body. It was taken out and sealed by Dr. Dugar (PW 25) who conducted the post mortem examination. This bullet, as per the report Ex. P 74, could have been fired from the pistol referred to above. The learned Sessions Judge put much reliance on these sets of evidence. 18. The contention of Mr. Gaur is that these two sets of evidence, when critically examined, furnish no formidable incriminating material against the appellant. It was argued that as per recovery memo Ex. P 41, one country-made 503-bore pistol was recovered in consequence of the information furnished by the appellant. But it was not sent for examination to the State Forensic Science Laboratory. Gaur is that these two sets of evidence, when critically examined, furnish no formidable incriminating material against the appellant. It was argued that as per recovery memo Ex. P 41, one country-made 503-bore pistol was recovered in consequence of the information furnished by the appellant. But it was not sent for examination to the State Forensic Science Laboratory. The pistol sent to the Forensic Science Laboratory was one 8 mm country-made pistol. As such the opinion of the expert Dr. M mocha (PW 29), Assistant Director, State Forensic Science Laboratory, Jaipur should not be taken into consideration against the appellant. It was also argued that the Investigating Officer PW 24 Anuman Singh did not state that the country-made 303-bore pistol, the six live cartridges and the spent car:ridge which were recovered in consequence of the information furnished by the appellant were at all sealed. This damages the prosecution case beyond repair. 19. It was, on the other hand, contended by the learned Public Prosecutor that the 8 mm country-made was the very pistol described as 303-bore pistol in seizure memo Ex. P 41. A mere difference in the description of the fire - arms in Ex. P 41 and Ex. P 74 is not sufficient to dismiss the entire evidence. The learned Public Prosecutor further submitted that there was no good reason for distrusting the opinion of Dr. Manucha (PW 29). Reference in support of the contention was placed on Kalwa v. State of Uttar Pradesh, AIR 1935 SC 180 . We have taken the respective submissions into consideration. 20. PW I Sanwat Singh deposed that when the Investigating Officer visited the site, he (witness) noticed one spent cartridge there. He picked it up and presented it to the Investigating Officer. The Investigating Officer seized and sealed and prepared seizure memo Ex. P 6, PW 16 Godhu Ram, who is a Motbir of the seizure memo EX. P 6 deposed that Sanwat Singh (PW 1) picked-up the spent cartridge lying on the scene of occurrence and gave it to the Investigating Officer who seized and sealed it. This spent cartridge is Article 5. The Investigating Officer Benney Singh A.S:I. Police deposed that when he visited the site on November 18, 1976, Sanwat Singh presented the spent cartridge (Art. 5) to him which he seized and sealed and prepared seizure memo EX. P 6. This spent cartridge is Article 5. The Investigating Officer Benney Singh A.S:I. Police deposed that when he visited the site on November 18, 1976, Sanwat Singh presented the spent cartridge (Art. 5) to him which he seized and sealed and prepared seizure memo EX. P 6. Thus, it stands proved that the spent cartridge (Art. 5) was found on the scene of occurrence. It was seized and sealed by the Investigating Officer under seizure memo EX. P 6. There is also no difficulty that bullet (Art. 4) was found in the dead body of Budha Ram when the post mortem examination of his dead body was conducted by Dr. Dugar (PW 25). 21. As stated earlier, the appellant was arrested on November 28, 1976. The Investigating Officer Hanuman Singh (PW 24) deposed that while the appellant was in police custody he made the disclosure statement EX. P 51 before him that he had concealed one country-made 303-bore pistol, six live cartridges and one empty case of the cartridge in the husk of Gawar lying in his room and that he would get these articles recovered. He further stated that the appellant thereafter took him and the Motbirs to a room of his house in which the heap of Gawar chaffs was stacked. There he took out one country-made 303-bore pistol, six live cartridges 8mm/315 IN-KF and one spent cartridge of the same pattern from the stack of husk. These articles were seized and seizure memo EX. P 41 was prepared. The Motbirs of the seizure memo EX. P 41 are Bheek Singh (PW 17), Guidas and Bhoopsingh Sub-Inspector. Guldas and Bhoop Singh have not been examined produced in evidence. PW 17 Bheek Singh has not supported the prosecution case whole - heartedly. His testimony on this point is halting and indecisive. At first he identified pistol Article 9 (recovered at the instance of acquitted accused Magha Ram) as that firearm which the appellant got recovered. When pistol Article 10-(said to have bee.) recovered at the instance of the appellant) was shown to him, he replied that it was not that pistol which the appellant got recovered. At first he identified pistol Article 9 (recovered at the instance of acquitted accused Magha Ram) as that firearm which the appellant got recovered. When pistol Article 10-(said to have bee.) recovered at the instance of the appellant) was shown to him, he replied that it was not that pistol which the appellant got recovered. To quote him in his own words : vkVhZdy 10 dks ns[k dj xokg us dgk fd ;g fiLrkSy og ugha gS tks gjthjke us cjken djkbZ FkhA Later on when he was again asked by the Public Prosecutor whether Article 10 was that pistol which the appellant got recovered, he resiled from his earlier statement referred to above and stated that Article 10 was that very pistol which the appellant got recovered. It is, thus, clear that the witness has not given a consistent version about the identity of the pistol alleged to have been recovered at the instance of the appellant. The witness was also cross-examined with reference to his statement EX. D 7 given before the Judicial Magistrate (1), Bikaner in a criminal case against the appellant in connection with a charge of being found in unlawful possession of a fire-arm. He merely denied to have given the statement EX. D 7 before the Judicial Magistrate. According to his statement EX. D 7 he remained standing outside the house of the appellant and the police officers went inside his house. The police officers thereafter came with a country-made pistol and other articles. He has not explained as to how he gave the aforesaid statement EX. D 7 before the Judicial Magistrate. Any way, the testimony of Bheek Singh (PW 17) does not inspire confidence. Unfortunately, the prosecution has not examined the remaining Motbir Guldas and the other Police Officer Bhoop Singh Sub-Inspector. 22. The other unfortunate part is that the Investigating Officer Hanuman Singh (PW 24) did not state that the pistol, the live cartridges and the spent cartridge which were got recovered at the instance of the appellant were sealed at all. It may be bonafide omission on his part but the fact remains that he did not say so. 23. 22. The other unfortunate part is that the Investigating Officer Hanuman Singh (PW 24) did not state that the pistol, the live cartridges and the spent cartridge which were got recovered at the instance of the appellant were sealed at all. It may be bonafide omission on his part but the fact remains that he did not say so. 23. Assuming now that one country-made 303 bore pistol, six live cartridges and one spent cartridge were recovered at the instance of the appellant, the question which arises for consideration is whether the same pistol 303 was sent to the Forensic Science Laboratory for test and opinion. The report of the Forensic Science Laboratory Ex. P 74 clearly shows that no country-made 303-bore pistol was received there. Letter Ex. P 46 by the Superintendent of Police addressed to the Forensic Science Laboratory shows that packet marked 'B' contained the country-made 303-bore pistol recovered at the instance of the appellant and it was this pistol which was being sent to the Forensic Science Laboratory. The report Ex. P 74 of the Forensic Science Laboratory shows that packet 'B' contained one country-made pistol (marked W/1). This pistol was 8 mm country-made pistol and not the country-made 303 pistol. It is, thus clear that what was received in the Forensic Science Laboratory was not the 303-bore country-made pistol but 8 mm country-made pistol. We are, therefore, not in a position to say that the country-made 303-bore pistol recovered at the instance of the appellant was sent to the Forensic Science Laboratory for test and I opinion. It is in the knowledge of everybody that 303-bore country-made pistol and 8 mm country-made pistol are different and distinct type of I weapons. One cannot be taken as the other. We pointed out the Public Prosecutor as to whether the 8 mm country-made pistol and 303-bore country-made pistol can be one and the same firearm. He could not satisfy us on the point. The fact, therefore, remains that these two weapons are different typed of fire-arms. One cannot be taken as the other. We pointed out the Public Prosecutor as to whether the 8 mm country-made pistol and 303-bore country-made pistol can be one and the same firearm. He could not satisfy us on the point. The fact, therefore, remains that these two weapons are different typed of fire-arms. It can therefore, be said that the country-made 303-bore pistol alleged to have been recovered in consequence of the information furnished by the appellant was not sent to the Forensic Science Laboratory and that the country-made 8 mm pistol received in the Forensic Science Laboratory in packet 'B' is not that which was recovered in consequence of the information furnished by the appellant to the Investigating Officer Hanuman Singh (PW 24). If it is not so and the pistol recovered at the instance of the appellant was not sent for test to the Forensic Science Laboratory, report Ex. P and the opinion of Dr. Manecha (PW 29) furnish no incriminating evidence against the appellant. 24. Unfortunately, again for the prosecution, there is no evidence to show that the packet of Article 10 recovered in consequence of the information furnished by the appellant was kept intact with seals untampered for the whole time so far it remained in the custody of police. None of the Investigating Officers deposed that the packet of articles 10 was kept in the Malkhana of the Police Station and the seals remained untampered. 25. Thus, the only piece of circumstantial evidence which survives against the appellant is that he remained absent on duty from August 30, 1976 to the day he was arrested. But this circumstance alone is not sufficient to connect him with the commission of the murders of the two victims. He is a resident of Bikaner district and his coming on leave and thereafter remaining absent from duty do not speak much against him. I It is only a circumstance which may be taken into consideration if there ;is I other evidence to connect him with the commission of the offence. He cannot be convicted merely on his remaining absent on duty. 26. For the reasons stated above, we are unable to maintain the conviction of the appellant Harji Ram. His conviction and sentence under sections 302 and 460, IPC are set - aside and he is acquitted of these offences. He cannot be convicted merely on his remaining absent on duty. 26. For the reasons stated above, we are unable to maintain the conviction of the appellant Harji Ram. His conviction and sentence under sections 302 and 460, IPC are set - aside and he is acquitted of these offences. He is in jail and shall be forthwith set at liberty if not wanted in an other case.Appeal allowed. *******