JUDGMENT 1. The learned Sessions Judge. Bundi, after concluding the trial in Sessions Case No. 109/87, has found accused Kakku alias Kalu, guilty under section 302, IPC, and sentenced him to death-sentence, vide his judgment dated 27th Apr, 1987. D.B. Cr. (Murder) Reference No. 1/1983 has been made to this Court for confirmation of the said death-sentence. and, the accused-appellant has also preferred D.B. Cr Jail) Appeal No. 155/88, against his conviction. Hence, they both are being disposed of by this common judgment. 2. Pyarelal, ASI PS Lakheri, submitted a written-report on 1st July, 87, to SHO PS Lakheri, wherein, it was alleged that on 30th June, 87, be had gone to Bundi, with some government-work, and while he was coming back from there, and had reached Lakheri at about 9.30 AM on 1st of July, 87, he was informed by one Mukhbir that one dead body was lying near the Papri railway-gate. On receiving the said information, Pyarelal had rushed towards the place where the dead body was lying. There, he had seen two police-constables, Satyapal Singh and Kamsingh He found that the dead body was lying in a ditch towards the right side of Kota-Lakheri road On receiving this information, FIR No. 6/87 under section 17-t, Cr P.C., was registered. The ASI prepared a site-plan, Panchayatnama and a seizure-inemo of the blood-stained clothes of the deceased. Photographs of the dead body were also taken. Doctor was called at the spot, who conducted post-mortem on the dead body. During the investigation, it was revealed that the dead body was of one Hari Prasad Kehli, resident of Lalsot, who was a truck-driver of Truck No RSR-3935. According to the post-mortem report, the person had died due to head-iniuty. On the basis of the investigation, a case under section 302, IPC, was registered and FIR No 56/87 was drawn. 3. The accused was arrested on 13th July, 87, vide arrest-memo (Ex. P. 20). One underwear was received from the accused vide memo (Ex. P. 21), on 13th July, 87. at the time of his arrest. The truck (RSR-3935) was also seized vide memo (Ex. P. 27). At the time of the seizure of the truck the same was inspected. and the investigating officer did not find any mark of blood or any quantity of hair, in the truck. 4. P. 21), on 13th July, 87. at the time of his arrest. The truck (RSR-3935) was also seized vide memo (Ex. P. 27). At the time of the seizure of the truck the same was inspected. and the investigating officer did not find any mark of blood or any quantity of hair, in the truck. 4. After completing routine investigation, the police submitted a challan against the accused, who was then committed to the court of session. The learned trial court framed charge against the accused under section 302, I.P.C., who denied the said charge and claimed to be tried. 5. The prosecution to establish its case examined as many as 34 witnesses. The accused denied all the allegations made against him. and his contention was that he was shown to the prosecution witnesses at the police station, and that the i police had also detained the 'Saadu (brother-in-law) of the deceased. No witness was, however, produced and examined by the accused in his defence. 6. In this case, there is no eye-witness. The entire case rests on the circumstantial evidence only. 7. The learned counsel for the appellant, Kakku, argued that one circumstance is the recovery of the articles at the instance of the accused, and according to him, the evidence regarding the recovery of the articles is unbelievable, and the conviction of the accused cannot be based on such type of evidence. It was argued that when the articles were recovered, the investigating officer did not seal them at the spot, and it seems that the packets in which the articles were packed, could be tampered with at any time. It was also argued that the articles were then sent to Forensic Science Laboratory (FSL), for examination, and the evidence regarding the fact as to when the said articles were sent to FSL, creates doubt in the prosecution case, and so, any report of examination of the said articles, is of no value. It was also argued that the accused was seen for the first time, by the witnesses, at the spot, and thereafter, he was seen by those witnesses in the court. It was also argued that the accused was seen for the first time, by the witnesses, at the spot, and thereafter, he was seen by those witnesses in the court. He argued that no identification-parade was held, so that, the witnesses 'could identify him before the Magistrate, and that in the absence of identification-parade, the identification of the accused in the court, has no value, and the courts cannot rely on the statements of those witnesses. 8. The learned Public Prosecutor, on the other hand, supported the judgment of the trial court. According to him, there is the evidence of 'last-seeing' against the accused, and that the recovery, the report of the FSL and the conduct of the accused are sufficient to find the accused-appellant, Kakku guilty. 9. We have heard both the learned counsel and have gone through the entire prosecution evidence, as well as the record of the case. 10. Pyarelal, ASI was the informant of the FIR, who was returning from Bundi. He was informed by the Mukhbir about the dead body lying near the Papri-Gate. Who was that Mukhbir, has not been named. No doubt, in certain cases, it is not safe to disclose the names of the person, by the police, but. this case is not of that type which would necessitate the police not to disclose the name of the Mukhbir That person could only give the information that the dead body was lying at such and such place. There is nothing to the effect in the report. It would have been fair on the part of Pyarelal, ASI to have disclosed the name of that person who had informed him that a dead body was lying at a particular place. Had that person been produced and examined by the prosecution, some more clues to the death of the victim, would have been found, during the investigation. This circumstance/possibility cannot be ruled out that the person might be in the knowledge of the person who had committed the murder, He could have given more details about the happening So, we fail to understand as to why the name of that Mukhbir has not been disclosed by Pyarelal, ASI. 11. According to the SHO, Sukhdevaram PW 32 he had gone to Lalsot & tried to search for the accused, but, he was unsuccessful. But, again when he went to Lalsot. 11. According to the SHO, Sukhdevaram PW 32 he had gone to Lalsot & tried to search for the accused, but, he was unsuccessful. But, again when he went to Lalsot. on 13th July, 87, he was able to arrest the accused It means, the SHO had no knowledge about the accused nor did he know his whereabouts also. But, the statement of Rasheed Khan PW 5 creates doubt in the statement of the SHO, Sukhdevaram. Rasheed Khan has stated that on 2nd July, 87, the accused had brought the truck to Lalsot, alone. He had asked the accused absent the driver of the truck and thereupon, he was told by him that the driver had got down at lakheri, and that he had waited for the driver for 2-3 days, but as he had no money with him, he came to Lalsot with the truck This fact was brought to the notice of Narain, brother of the deceased. But, strange that neither Narain nor Rasheed Khan reported the matter to PS Lalsot. Anyway. Rasheed Khan has stated that he had come to Lakheri along with Moti and three other persons on the second day when the accused had arrived with his truck at Lalsot He had inquired at Lakheri at the hotel of Indergarh, and here he was informed that some two days before, a murder bad taken place He had also verified absolute be identification of that person, and after knowing the identification-marks of that person, he had come to Lakheri. He had inquired from the transport companies at Lakheri, and was told that a dead body of some unknown person had been loud and cremated. Thereafter he had gone to PS Lakheri and found out about the dead body. At the police station. Rasheed Khan was shown the photographs (Exts. 11 to 15), and he identified them they being of his driver Harla. It means, the the third or fourth day of July 87 Rasheed Khan had seen the photographs of his driver, Harla, who had been murdered ASI Pyarelal has mentioned in the FIR (Ex P1) that on 1st July, 87, the photographer was called at the spot, who had taken photographs of the dead body. Thus it is clear that the photographs (Exs P. 11 to 15) were taken by the photographer on 13 July. Thus it is clear that the photographs (Exs P. 11 to 15) were taken by the photographer on 13 July. 87, and they were handed over to the police before Rasheed Khan PW had arrived at PS Lakheri, by 4th July, 87. This photographer. Bejal Deepak PW l he has been examined by the prosecution, and he has stated that the photographs (Exs P. 11 to 15) were taken by him and that he had taken those photos at 10-11 A.M. He had given delivery of those photographs to police after 10-12 days So, according to the photographer, Bejal Deepak PW 10, he had taken the photographs on 1st July, `87, and had given the positives thereof to the police on 11th or 13th July. 87. When the photographs were given to the police after 10-12 days, how they were shown to Rasheed Khan PW 5 after 2-3 days of the finding of the dead body? This shows that from the very begging. the case has not been investigated fairly, and as there was no eye witness to the alleged incident; and the entire case depended on the circumstantial evidence only, the police, has tried to manufacture the circumstances. 12. Similar is the statement of Narain PW 6, who had accompanied Rasheed Khan PW 5. He also had gone to PS Lakheri, and inquired about his brother Hariprasad, and he was also shown the photographs (Exs. P. 11 to 15), on 3rd July, 87. Thus, either Rasheed Khan PW 5 and Narain PW 6 are false and made out witnesses or the photographs (Exs. P. 11 to 15) were not taken as mentioned in the report (Ex. P. 1) and stated by Pyarelal, ASI, on 1st July,`87. This difference is a material one, which has not been explained by the learned Public Prosecutor, and so, it creates doubt and suspicion in the story of the prosecution. We would now like to deal with the recovery of the articles. Sukhdevaram PW 32 has stated that when he arrested the accused, the latter was wearing a `Dhoti and an underwear inside it. He had seized the said underwear at that very moment. The underwear had some blood-marks on its front side. The accused was arrested in a jungle about one furlong array from Lalsot. The recovery memo of the underwear is Ex. P. 21. He had seized the said underwear at that very moment. The underwear had some blood-marks on its front side. The accused was arrested in a jungle about one furlong array from Lalsot. The recovery memo of the underwear is Ex. P. 21. The arrest-memo of the accused is Ex P 20. In the said arrest-memo. it has been mentioned that the accused was wearing an underwear, a Dhoti and a shirt. All those clothes were examined minutely, and it was found that the underwear had been washed, but dots of blood were visible on it. It cannot be believed that the underwear had been washed by the accused, but still, blood- dots would be visible on it. Then the underwear was inside the Dhoti, and we are unable to understand. how the SHO could find the underwear inside the Dhoti and how he could notice that the underwear had blood on it. The shirt and the Dhoti were not seized, because, there was no blood on them. So, how doubt was created in the mind of the SHO that the underwear which was inside the Dhoti, and blood-dots over it that lateron, he seized it. Apart from this, according to the SHO, the accused was arrested in a jungle, about one furlong away from Lalsot. But, according to Birdhi chand PW8, who is the witness to the arrest-memo,the accused is arrested near the truck-union office. Thus, the difference of place where the accused was arrested shows that the arrest of the accused was also manipulated. This fact further creates suspicion in the case of the prosecution. 13. The underwear was sent to FSL for examination, and according to the report, the same had blood on it, and that blood was of B Group. This is also an unbelievable aspect. The washed underwear which was recovered after 12 days of the alleged incident, would have blood-dots over it and that blood could have been identified as that of `B Group, is an unbelievable fact. Then, Sualal PW 16, the witness to the recovery of the underwear has not stated that at the time of the recovery, the underwear was sealed. Birdhichand PW 8 has stated that the underwear was sealed at the spot. Thus, Birdhichand and Sualal contradict each other, and it is doubtful whether the underwear was sealed at the spot after its recovery. Birdhichand PW 8 has stated that the underwear was sealed at the spot. Thus, Birdhichand and Sualal contradict each other, and it is doubtful whether the underwear was sealed at the spot after its recovery. In that case, the unsealed packed could be opened at any time and blood-dots could be put over it. It was for the prosecution to have proved beyond reasonable doubt that the underwear which was recovered from the accused, had blood over it and that the said underwear was sealed at the spot in presence of the witnesses, and also that the seal remained infect under the custody of the Malkhana In-charge till the packet was sent to FSL, for examination, and further that the said packet was received by the FSL, in sealed condition. But, these facts have not been proved by the prosecution, and so, it creates doubt about the report of the FSL. 14. Similar is the position in the recovery of the tyre-lever-rod. It was recovered at the instance of the accused, vide memo Ex. P. 18, in presence of witnesses Rasheed Khan PW 5 and Babu Khan PW 14. None of these witnesses has stated that the said tyre-lever-rod was sealed at the spot, after its recovery. In the seizure-memo (Ex. P. 18), it has been mentioned that on the upper side of of the rod, something resembling blood, was found. In presence of the aforesaid two witnesses, Rs 2,600/- were also recovered. One pant and one bushshirt were also seized. Both these clothes had some red marks/material on them. The police had kept the currency-notes of Rs. 2,600/- in their pocket and had taken away the pant. Some writing was made about the recovery. Rasheed Khan has not stated that any of these articles was sealed at the spot Similar is the statement of Babu Khan PW 14. So. from the evidence of these witnesses, it is also clear that after the recovery of the articles, they were not sealed at the spot by the police. They were sent to FSL for examination, which carries no value, because, the packets could be tampered with at any moment and any mark could be put on them. So, these recoveries do not create a substantive evidence against the accused. They were sent to FSL for examination, which carries no value, because, the packets could be tampered with at any moment and any mark could be put on them. So, these recoveries do not create a substantive evidence against the accused. So, this was the position of the recoveries of the articles, and on the basis of these recoveries, the learned trial court has found the accused guilty. After going through the record of the case and the statements of the witnesses, we find that the trial court did not care to read the statements and understand the principles of law, as to how the alleged recoveries became corroborative evidence for convicting the accused. The way in which the recoveries were made and the articles were seized, creates doubt in the genuineness of the said recoveries. When the articles were not sealed at the spot at the time of the recoveries, they could easily be tampered with, later on, and any mark could be put on them to suit their case, by the police. Therefore, the report of the FSL in this regard, is of no value. 15. It was then argued by the learned counsel for the appellant that doubt further arises regarding the facts as to when the articles were sent to FSL, for examination. Exp. P. 33 is the letter sent from the office of the Superintendent of police, Bundi, to FSL, Jaipur. This is the forwarding-letter by which the packets marked A/1 to A/4 and B/l to B/3 were sent. These articles along with the letter (Ex P. 38) were sent through Constable Ranveer Singh PW 19. This witness Ranveer Singh has stated that he was posted at PS-Lakheri, on IXth July, 87, and on that date he had taken seven packets, in sealed condition, along with papers, for delivery to FSL, Jaipur. He had deposited those packets and papers on 18th July. 87 and had taken a receipt therefor (Ex P. 13). In his cross-examination, he said that he had left for Jaipur, on 18th July,87, in the night at about 1 O'clock and had delivered the packets the next day, at 10 A.M. On 19th July, 87. he had returned from Jaipur, and on 20th July,87, he had handed over the receipt. It was suggested to this witness that he had reached Jaipur on 19th July, 87. he had returned from Jaipur, and on 20th July,87, he had handed over the receipt. It was suggested to this witness that he had reached Jaipur on 19th July, 87. But, he denied the suggestion He also denied that on 18th July, 87, he was at the office of the Superintendent of Police, Bundi 16. Ramkripal PW 18 was the Malkhana-In-charge at Lakheri. He has stated that on 18th July,`87, he had sent the sealed packets through Ranveer Singfa, to FSL, Jaipur. In his cross examination, he said that it was incorrect to say that on 17th July, `87, he had not handed over the articles to SHO, Lakheri. He also said that it was incorrect that on 18th July, 87, he had sent Ranveer Singh along with the articles, to Jaipur. Thus, the statement of Ramkripal P.W. 18, is self-contradictory. 17. Ramanand Mishra P.W. 24 was working as Assistant to S.P., Bundi, at' the relevant time. He has stated that on 17th July, `87, he was posted as Crime Assistant in the office of S.P., Bundi He has further stated that on that date, the articles of FIR No. 58/87 under section 302, IPC, were received at the office, for sending them to FSL, Jaipur. He had prepared the letter (Ex P. 38) on 16th July,`87. but the same was sent on the next date. In their office, the articles were received on 16th July, 487, which were brought there by Ranveer Singh Constable. The articles were sent to FSL, Jaipur, through Ranveer Singh with the forwarding-letter (Ex P. 38). The letter (Ex. P. 38) was perused by us. and we find that the date mentioned therein is 16th/17th July, 87. Thus, according to Ramanand Mishra PW 24, who was Crime-Assistant to S P., Jaipur, had received the packets on 16th July, 87, and with the forwarding-letter (Ex P. 38), he had sent those articles to FSL. Jaipur, for examination, through Ranveer Singh Constable. Now, we see that there is vast difference in the statements of Ranveer Singh PW 19. Ramkripal PW 18 and Ramanand Mishra PW 24. When the articles were sent on 18tb July, `87, by Malkhana-Incharge Ramkripal PW 18, through Ranveer Singh PW 19 how they reached the office of S. P., Bundi, on 16th July, `87, How the letter (Ex P. 38) was written and prepared well in advance on l6th July 87. Ramkripal PW 18 and Ramanand Mishra PW 24. When the articles were sent on 18tb July, `87, by Malkhana-Incharge Ramkripal PW 18, through Ranveer Singh PW 19 how they reached the office of S. P., Bundi, on 16th July, `87, How the letter (Ex P. 38) was written and prepared well in advance on l6th July 87. before receiving the articles in this case? So, this all shows that Ranveer Singh PW 19 and Ramkripal PW 18 have given false statements. We thus find that the entire circumstances create a great suspicion the whole of the prosecution story. When the articles were sent to FSL, Jaipur, for examination, they were seized but not sealed. The possibility that the articles could be tampered with by the prosecution after their seizure, creates a great suspicion in the entire prosecution story. 18. We are, therefore, constrained to observe here that the learned Sessions Judge has not been able to understand the niceties of law, and he has written along judgment, unnecessarily, wasting his time and putting unnecessary labour, who has utterly failed to understand the various important aspects of the case. He has believed all the alleged recoveries, seizure of the articles, and the fact of sending the said articles to FSL, Jaipur, for examination, but, has not been able to analysed evaluate the evidence on record, and could not judge whether this type of evidence was believable or not. 19. Another important aspect is that in the forwarding-letter (Ex. P. 38) it has been mentioned that packet-A/1 contained Chaddar, Chaddar Sholapuri Loongi and Banyan, all blood-stained which were seized from the dead body of Hariprasad. This packet was sent in sealed condition to FSI, Jaipur, for examination But the statement of Dr. V.N. Mathur PW 34 who was serologist and who had opended the said packet, has stated that he had found 5 articles in that packet. According to this witness, there were chaddar, another chaddar, Loongi, 1 Banyan and silver-chain. It is strange, how one silver-chain was found inside the packet marked A/1. This packet, according to the forwarding-letter (Ex P 38 had only 4 articles There is no mention in the document (Ex P. 38) that packed (A/1) contained a silver-chain also How was a silver-chain found in the packet (A/1) when it was received in sealed condition in the FSL and opened by the serologist ? This packet, according to the forwarding-letter (Ex P 38 had only 4 articles There is no mention in the document (Ex P. 38) that packed (A/1) contained a silver-chain also How was a silver-chain found in the packet (A/1) when it was received in sealed condition in the FSL and opened by the serologist ? It shows and corroborates our conclusion that because the articles after their seizure were not sealed at the spot,there did remain chances of the packets being opened and tampered with, and this was the reason that in order to establish the case against the accused, the police had subsequently opened the packet and kept one silver-chain There is no evidence that the silver-chain was recovered by the police, at the instance of the accused Who had given this chain, in whose presence, it was recover d and where it was kept ? How this chain reached the FSL and how it was found in the packet A/1, is best known to the prosecution. But, all these facts and circumstances certainly create a great suspicion in the whole prosecution case. Really, it is a very sorry state of affair and we take pity that murder cases are being investigated in such a manner. We further feel sorry that the learned Sessions Judge did not care to look into this aspect, and found the accused-appellant, Kakku. guilty of offence under section 302, IPC, and he went to the extent that he awarded death sentence to the accused, especially in such circumstances; 20. There is one more document which creates doubt, as we have mentioned above, and that is the receipt (Ex P. 30) After receiving the articles at FSL, Jaipur, the receipt (Ex. P. 30) was given to Ranveer Singh Constable. This receipt is dated 18th July, 87, meaning thereby that the articles were received at the FSL, on 18th July, 87. In this receipt, it is mentioned that the articles were received through Letter No 5410-12 dated 16th July, 87. This letter is the same document (Ex. P. 38) sent by the office of S P , Bundi. When we look to the letter, we find that the date mentioned is 16th/17th July. 1987. Had the date been true as mentioned in the letter, the receipt (Ex. P. 30) would hive a similar note that the letter was dated 6th/17th July. 87. P. 38) sent by the office of S P , Bundi. When we look to the letter, we find that the date mentioned is 16th/17th July. 1987. Had the date been true as mentioned in the letter, the receipt (Ex. P. 30) would hive a similar note that the letter was dated 6th/17th July. 87. The receipt (Ex P. 30) has a clear mention that the letter was dated 16th July,87. It means that when the letter was sent to FSL, Jaipur, along with the articles, there was one date mentioned therein i. e , 16th July, 87 and subsequently, the date 17th was written. It has not been explained by the prosecution as to how this interpolation took place. The fact is that the articles were received at the SP-Office, Bundi, on 16tb July, 87, and on that very date, they ertr sent to FSL. Jaipur, with Ranveer Singh Constable. But, they were delivered on 18th July,87, at Jaipur Why they were delivered after two days ? Why there is interpolation in the date? Why there is difference in the statement of the prosecution witnesses about the date when the articles were sent to FSL, Jaipur ? The prosecution has not been able to explain any of these aspects, and this all again gives rise to doubt in the case of the prosecution. 21. It was then argued that the accused took the defence that his driver, Hariprasad had gone to his `Saadu (brother-in law) and he had not returned for 2-3 days, and then, the accused had brought the truck himself to Lalsot. From the very beginning it was known to the police that the Sadu of the deceased had come to village that day. 22. PW 4 Pyarelal has said in his cross-examination that the investigation in this case was pending from 3rd July to 9th July, 87. But, he could not trace the Saadu of the deceased. He had inquired about the Saadu of the deceased, but, he could not find that his whereabouts. That Saadu was of Nayapura, Lakheri. 23. PW 5 Rasheed Khan has also stated in his cross-examination that he had informed the police about the Saadu of the deceased, and that the police had called that Saadu. in their presence. 24. Narain PW 6 who is the brother of the deceased, has denied the Hariprasad had any Saadu. That Saadu was of Nayapura, Lakheri. 23. PW 5 Rasheed Khan has also stated in his cross-examination that he had informed the police about the Saadu of the deceased, and that the police had called that Saadu. in their presence. 24. Narain PW 6 who is the brother of the deceased, has denied the Hariprasad had any Saadu. He has stated that the accused was telling at Lalsol that first of all, the truck was brought by the Saadu of Hariprasad It means the accused had disclosed the fact that the Saadu was with the deceased. Pyarelal ASI had also come to know about the Saadu of the deceased, and during the investigation, he had tried to find him out. 25. According to Rasheed Khan PW 5, the Saadu of the deceased had been called by the police. 26. SHO Sukhdevaram PW 32 has stated that witnesses Narain, Motilal and Rasheed Khan stated in their statements that the Saadu of the deceased was also with them They had tried to find him out, but, they were informed that the deceased had no Saadu.A suggestion was put that in order to save that Saadu he (SHO) had prepared the story and concocted the case. But, according to the SHO, the Saadu of the deceased was not involved in this case, he was not traced out, and no investigation was made from him. But, according to Rasheed Khan, the Saadu of the deceased had been called by the police and he was interrogated Narain, who is brother of the deceased has totally denied that the deceased had any Saadu, So, from the statements of all these witnesses, it seems that the investigation in this case, has not been done fairly and correctly. The Saadu of the deceased was with the accused, who had brought the truck to Lalsot. That Saadu was an important link. But, the police or the investigating officer did not think it proper to arrest that Saadu, and get the things clarified from him. So, this is an example of a bad investigation. It leaves lacuna in the prosecution story, for which, benefit should be given to the accused. 27. The prosecution has examined Rajendra PW 33, to prove the circumstance of "last seeing" of the accused with the deceased. His Rajendra is a tea-vendor having his tea-stall at the truck-stand, Lakheri. So, this is an example of a bad investigation. It leaves lacuna in the prosecution story, for which, benefit should be given to the accused. 27. The prosecution has examined Rajendra PW 33, to prove the circumstance of "last seeing" of the accused with the deceased. His Rajendra is a tea-vendor having his tea-stall at the truck-stand, Lakheri. He has stated that the driver and the accused were in the truck No. KSR 935, which was standing by the side of his tea-stall. According to him, the truck had arrived there at about 7-8 A.M., and thereafter, the truck remained standing there for the whole night, and during that period, the truck did not move anywhere. According to this witness, he used to sleep in the night, at his tea stall. In his cross-examination he has further said very emphatically that the truck had remained standing at place till the next morning and that it did not move anywhere in the night. Rajesh bad seen the accused for the first time with the deceased, in the truck. He did not know the accused In the court, he identified the accused as to be same `Khalasi who was in the truck with the deceased So, the accused was not known to Rajendra PW 3He had seen the accused only on that day, for the first time, and thereafter, he saw him in court, while giving statement. 28. The learned counsel for the appellant argued that such identification has no value. According to him, the police should have conducted identification parade, and Rajendra PW 33 should have identified the accused prior to coming to court, and therefore, according to him, the identification of the accused in the court, has no value. To support his argument, he cited the cases of Jagtar Singh v. The State 1987 R.C.C. 158 and Kanan & others v. State of Kerala, ( AIR 1979 SC. 1127 ) . 29. In the case of Kanan and others (supra), their Lordships of the Supreme Court have observed that where a witness identifies an accused who is not known to him. 1127 ) . 29. In the case of Kanan and others (supra), their Lordships of the Supreme Court have observed that where a witness identifies an accused who is not known to him. in the court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. Parade under S. 9, to test his powers of observations, and that the idea of holding T.I. parade under section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness might have seen only once, and that if no T. I parade is held then it would be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. 30. In the case of Jagtar Singh (supra), which is a decision of our own High Court, it was held that in the absence of identification parade, it seriously casts doubt on the circumstance of last seen. The accused persons have been put to identification-parade and such identification of accused persons in the court being valueless, the evidence of these witnesses of last seen, the accused persons with deceased ceased to have such relevance. 31. Thus, in view of the law cited above, the evidence of last seeing of the accused with the deceased is of no value For the first time, witness Rajendra had seen the accused in the court- No test identification parade was held prior to his identification in the court. 32. Another ground to disbelieve this witness Rajendra is that according to the prosecution, the dead body was not found near the stall of Rajendra, but, it was found near the railway-crossing gate which was quite at a distance. It means that the dead body had been taken to that place in the truck. After committing the murder the accused must have taken the dead body in the same truck and put it near the railway-crossing gate He could not have lifted and carried the dead-body to such a long distance. But, as Rajendra PW 33 has stated, the truck bad remained near his tea-stall for the whole night, and it had not moved anywhere till the next morning So how the dead body was carried away from the truck-stand to railway crossing gate, has not been explained by the prosecution. But, as Rajendra PW 33 has stated, the truck bad remained near his tea-stall for the whole night, and it had not moved anywhere till the next morning So how the dead body was carried away from the truck-stand to railway crossing gate, has not been explained by the prosecution. Hence, we do not believe the evidence of last seeing of the accused with the deceased and witness Rajendra is found to be a false one. 33. The police has produced Tulsiram PW 21 to prove that he had been taken by the accused in his truck, to Lalsot Tulsiram is a boy of 15 years, and according to the prosecution, he had been taken away as a "helper" by the accused. 34. We have gone through the statement of Tulsiram PW 21. In his cross-examination, he has said that when be has said that when he had returned from Lalsot, two days thereafter, the police had come to his house and had taken him, and his statement was recorded. His statement was recorded by the police twice, and 3-4 days after recording his first statement, his second statement was recorded According to Tulsiram, the accused did not know the way to Lalsot, and so, he was asked to accompany them. Tulsiram too does not belong to Lalsot. He was also not knowing the way from Lakheri to Lalsot. How Tulsiram was traced out by the prosecution ? He was the only witness who was in the truck with the accused upto Lalsot. He was not known to the accused. After the statement of this witness, we are of the opinion that he is a false and made out witness, and no reliance can be placed on his testimony. 35. It was also argued that the dead body was recovered by the police on 1st July, 1987 in the morning. Then, the doctor was called there who conducted the post-mortem examination on the dead body on the same date. After the arrest of the accused, the investigating officer recorded his statement under section 27 of the Indian Evidence Act, regarding the places where he had committed the crime and where he had put the dead body All this information given by the accused was after the recovery of the dead body, and as such, the same is not admissible in evidence. 36. 36. The truck was also recovered by the police vide memo Ex. P. 27 and there is no mention therein that there was any blood in the said truck " On the other hand, it is specifically mentioned in the memo (Ex P. 27) that no blood was found in the truck. The tyre-lever-rod was also recovered at the instance of the accused from truck No. RSR 3935, and according to the prosecution, there was blood on it. This is also unbelievable that there would be any blood on the tyre-lever-rod. Moreover, we have already discussed above that the report of the FSL about having blood on the allegedly recovered articles, has no value. So, only oo the circumstantial evidence of recovery of the articles at the instance of the accused, without corroboration by any further evidence, the conviction of the accused, cannot be maintained. 37. The learned Public Prosecutor also argued that the accused was in the habit of taking money from the deceased, who was the driver of the truck, and that the former was not paying back the amount which he had already taken from the deceased, and so, this was the motive of the accused to commit the crime. A sum of Rs. 2,600/- has been recovered by the police, at the instance of the accused But, as discussed above, we do not believe the recovery of Rs 2.600/-, by the police. Similarly, the report of the FSL regarding the tyre-lever-rod and the blood-stained clothes, is also doubtful. The presence of motive, and the recovery of the tyre-lever-rod as well as blood-stained clothes, are insufficient for sustaining the charge against the accused. We are fortified in our view by the decision of Honble the Supreme Court, is the case of Narsinbhai Hari-bhai Prajapati v. Chhatrasingh and others ( AIR 1977 SC 1753 ) . 38. The presence of motive, and the recovery of the tyre-lever-rod as well as blood-stained clothes, are insufficient for sustaining the charge against the accused. We are fortified in our view by the decision of Honble the Supreme Court, is the case of Narsinbhai Hari-bhai Prajapati v. Chhatrasingh and others ( AIR 1977 SC 1753 ) . 38. In the case of Sharad Birdhichand Sarda v. State of Maharashtra ( AIR 1984 SC 1622 ) , it was held as under : "The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature & tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 39. In view of our above observations, we are of the opinion that the learned Sessions Judge has committed error in not appreciating the evidence on record and the relevant law pertaining to circumstantial evidence. In our considered opinion, the prosecution has failed to establish its case beyond reasonable doubt. In the circumstances of this case, we are unable to maintain to conviction of the accused, awarded to him by the trial court. 40. In the result, while answering the criminal reference for confirming lie death-sentence, awarded to the accused, by the trial court, in the negative, the appeal filed by the accused, is hereby allowed. The conviction and the sentence if the accused-appellant, Kakku alias Kalu, are, therefore, set aside. He is in jail. He be released forthwith, if not required in any other case.Appeal allowed. *******