Judgment N. C. SHARMA, J. ( 1 ) RAFIQ Khan son of Saddiq Khan aged 18 to 20 years, resident of Mathiram-kacda, Maura-ka-chowk, Jodhpur had on the evening of November 17, 1971 gone to attend the period of English language in Lucky College, Jodhpur and he did not return alive to his home and was found dead within the compounds of Ravan-ka-chabutra by Rameshwar Singh Food Constable No. 1289 of Police Chowki Masuria at about 7 A. M. while Rameshwar Singh was going to case himself. He found the dead body lying in backward position and burnt on the upper half of the body with blood spreading around on the ground. He also noticed the prints of tyres of two cycles going upto and coming back from that place and also foot prints of persons. He immediately went to Police Station Shastrinagar Jodhpur and got recorded a report Ex P. 2 in Roznamcha-aam of the Police Station at 7. 30 A. M. 011 the basis of the report made by Rameshwar Singh the Station House Officer of the said Police Station recorded the first information report Ex. P. 50 and registered a case under section 302, IPC. Narpat Singh, who was Officer-in-charge of the Police Station, immediately proceeded to the place where the dead body was lying and prepared an inquest report Ex. P. 13 in the presence of Bhauram and Jatharam Panchas. He prepared a site plan Ex. P. 51 and seized blood smeared and plain sand from the place of occurrence. He noticed prints of tyres of cycles and showed the movements of the cycle in the site plan prepared by him. The site inspection note Ex. P. 12 was also prepared. He also noticed foot prints at the place of occurrence. Narpat Singh prepared moulds of cycle tyre prints and foot prints after preparing a compound of Plaster of Paris and by fixing a frame. The pant and the bush shirt which the deceased was wearing were seized and sealed. The dead body was shifted to Mahatma Gandhi Hospital Jodhpur. At the hospital Sharif Khan, uncle of the deceased, handed over a report Ex. P. 5 along with a document Ex. P. 4 to Narpat Singh. The pant and the bush shirt which the deceased was wearing were seized and sealed. The dead body was shifted to Mahatma Gandhi Hospital Jodhpur. At the hospital Sharif Khan, uncle of the deceased, handed over a report Ex. P. 5 along with a document Ex. P. 4 to Narpat Singh. During investigation one Deen Mohammed met Narpat Singh and told the latter that Anwar Ali and Saddiq Khan appellants in D. S. Criminal Appeal No. 329 of 1981 had made an extra judicial confession of the crime before him. After having been so told, the Investigating Officer went to the house where these two accused persons were living and arrested them on November 20, 1977 under arrest memo as Ex. P. 40 and Ex. P. 41 and also seized their Chhapals Articles 20, 21, 24 and 25. Both those accused persons were living in the house of Saddiq Khan, father of the deceased, as his tenants. Narpat Singh also arrested Mohammed Ismail appellant in D. B. Criminal Appeal No. 327 of 1981 on the same date at 9 P. M. under the arrest memo Ex. P. 42 and seized clothes and Chappals of Mohammed Ismail. ( 2 ) IT was the prosecution case that Mohammed Saddiq got recovered cycle Art. 32 from the house in which he was living. Mohammad Ismail gave information to the Investigating Officer that he had taken a cycle Art. 4 from the shop of Abdul Majid P. W. 6. Narpat Singh seized that cycle Art. 4 and separated its wheels Art. 5 and also seized the cycle hire register Ex. P. 7 from the shop of Abdul Majid. The Investigating Officer also applied to the Judicial Magistrate No. 1, Jodhpur for taking specimen handwriting of Mohammed Ismail appellant for the purpose of comparison of his specimen handwriting with the handwriting on the document Ex. P. 4 which had been handed over to the Investigating Officer by Sharif Khan PW 4 uncle of the deceased at Mahatma Gandhi Hospital Jodhpur and on this application the specimen handwriting of Mohammed Ismail Ex. P. 14/1 to Ex. P. 14/12 were taken by Judicial Magistrate No. 1, Jodhpur. P. 4 which had been handed over to the Investigating Officer by Sharif Khan PW 4 uncle of the deceased at Mahatma Gandhi Hospital Jodhpur and on this application the specimen handwriting of Mohammed Ismail Ex. P. 14/1 to Ex. P. 14/12 were taken by Judicial Magistrate No. 1, Jodhpur. It is alleged that on November 26, 1977 Anwar Ali accused while in custody gave information to Narpat Singh that he had thrown a copy after tearing off its cover in Grounda Baodi and on this information and at the instance of Anwar Ali appellant, Copy Art. 2, which was floating in the Baodi, was recovered and seized by him. It was identified, that copy Art. 2 was of deceased Rafiq Khan and he had taken it to Lucky College on November 17, 1977 when he had gone there to attend the period of English language. Mohammed Saddiq appellant also gave information on the same day regarding a glass bottle and on the basis of that information glass bottle Art. 7 was recovered from inside the bushes near a bobool tree at Ravan-ka chabutra. This bottle was seized and sealed by the Investigating Officer. The Investigating Officer also took finger prints plain and rolled of all the three appellants. It is further alleged that Anwar Ali and Mohammed Ismail appellants had made application Ex. P. 60, Ex. P. 61 and Ex. P. 64 for making them approvers in the case and their applications were dismissed by the Judiciai Magistrate, Jodhpur by his order Ex. P. 65. On November 28, 1977 Mohammed Ismail is stated to have given information to Gom Singh Sub-Inspector Police, Police Station Shashtrinagar PW 28 regarding a knife being hidden in a pit near Ravan-ka-chabutra and on the basis of this information Ex. P. 49 and at the instance of Mohammed Ismail appellant knife Art. 1 was recovered from the place pointed out by Mohammed Ismail and was seized under the seizure memo Ex. P. 48. The autopsy on the dead body of Rafiq Khan was conducted by Dr. N. S. Kothari Medical Jurist PW 1 on November 18, 1977 at 2. 10 P. M. and his post mortem report is Ex. P. 1. He found ten stab wounds and one incised wound on the dead body of Rafiq Khan. According to Dr. P. 48. The autopsy on the dead body of Rafiq Khan was conducted by Dr. N. S. Kothari Medical Jurist PW 1 on November 18, 1977 at 2. 10 P. M. and his post mortem report is Ex. P. 1. He found ten stab wounds and one incised wound on the dead body of Rafiq Khan. According to Dr. N. S. Kothari death of Rafiq Khan was a result of internal haemorrhage and injury to his both lungs and lever. The specimen handwriting of Mohammed Ismail Ex. P. 14/1 to Ex. P. 14/12 and the writing on document Ex. P. 4 were sent to the Forensic Science Laboratory Jaipur for comparison. Dr. D. C. Sethi PW 12 examined the questioned documents Ex. p. 4 and compared the handwriting from Standard writings Ex. P. 14/1 to Ex. P. 14/12 of Mohammed Ismail appellant and he submitted his report Ex. P. 16 to the effect that both the questions and the standard writings had been written by one and the same person. Chance prints on glass bottle seized were sent to Finger Print Bureau Rajasthan Jaipur for examination and the Bureau sent its report Ex: P. 26. The report mentioned that chance print photographs marked 0. 1 was similar and identical with the specimen, thumb print marks of Mohammed Saddiq appellant. Chance print marked Q. 2 (a) was also similar and identical with the specimen right index finger marks 5. 1 of Mohammed Saddiq appellant so also chance print marked Q. 2,b ). Chance print marked C. 2 (c) was unfit for comparison. Chance shop impression moulds lifted from the scene of the occurrence along with Chappals of Mohammed Ismail and Mohammed Saddiq appellants were also sent to Rajasthan Finger Print Bureau Jaipur for comparison and the report given by the said Bureau is Ex. P. 31. The opinion was given that the chance shoe impressions marked 1 to 3 were similar and identical with the sole of the original Chappal respectively and left and right feet of Mohammed Ismail. The chance shoe impression marked Nand L were reported to be similar with the original left and right Chappals respectively of Mohammed Saddiq. No opinion could be given on the chance shoe impressions moulds marked M N o P in the absence of specimen prints or original shoes. The chance shoe impression marked Nand L were reported to be similar with the original left and right Chappals respectively of Mohammed Saddiq. No opinion could be given on the chance shoe impressions moulds marked M N o P in the absence of specimen prints or original shoes. However, when original sandle and Chappal pairs of Anwar Ali appellant and Refiq Khan deceased were sent, the opinion Ex. P. 36 was sent by the Finger Print Bureau stating that chance shoe impressions mould M and N were similar and identical with the left and right soles of the sandles of Anwar Ali appellant. The moulds marked O and P were found to be of the Chappals on Rafiq Khan deceased. The chance tyre impressions were G and H lifted from the seeds of the occurrence with two rim of cycle wheels with tyres fitted thereon were also sent for experts opinion and the opinion Ex. P. 39 was given that the chance tyre impressions were similar to the tyres of cycle wheel rimes Arts. 5 and 6. The glass bottle seized was sent to Forensic Science Laboratory and it was reported by Ex. p. 71 that the bottle possessed smell similar to that of petroleum product. However, no definite opinion could be given as the bottle was empty. Pant, bush shirt, blood smeared soil and two Chappls were found to be stained with human blood. The blood group of a pant was 8 group. The original of blood group of bush shirt, blood smeared soil, two Chappals could not be determined. Blood stains on remaining five articles including the knife were stated to be disintegrated and their origin could not be determined. ( 3 ) THE motive of the crime, according to the prosecution was that a document Ex. P. 4 found to have been written in the handwriting of Mohammed Ismail appellant was found by Sharif Khan P,w. 4, of deceased Rafiq Khan, at the door of his house on the morning of November 18, 1977. Sharif Khan read the contents of Ex. P. 4. The contents were that if you want to see Rafiq alive, reach at the gate of Nehru Park to night at 9 P. M. with Rs. 10,000/-, other wire Rafiq would killed. The amount was to be brought in a black thali and they will understand. Sharif Khan read the contents of Ex. P. 4. The contents were that if you want to see Rafiq alive, reach at the gate of Nehru Park to night at 9 P. M. with Rs. 10,000/-, other wire Rafiq would killed. The amount was to be brought in a black thali and they will understand. It was warned that no cleverness or shrewdness should be shown. Contents of Ex. P. 4 on comparison with subsequent writing of Mohammed Ismail were found to be that of Mohammed Ismail. Saddiq Khan father of deceased Rafiq Khan, after telling his brother Sharif Khan PW 4 in the morning of November 18, 1977 that Rafiq Khan had not returned to house in the night had left the house in search of Rafiq Khan. When Saddiq had returned to his house in the noon, Sharif Khan shown the document Ex. P. 4 to his brother Saddiq Khan. Saddiq Khan was horrified to read the contents of Ex. P. 4. He told his brother Sharif Khan that while he had gone in search of Rafiq Khan he had heard that a dead body brought from Ravan-ka-chabutra was lying in Mahatma Gandhi Hospital Jodhpur. Both Saddiq Khan PW 26 and Sharif Khan PW 4 then went to Mahatma Gandhi Hospital and Sharif Khan submitted a report along with original document Ex. P. 4 at the hospital to Narpat Singh Investigating Officer. As already stated, Narpat Singh arrested the petitioner on November 20, 1977 when Deen Mohammed informed him that Anwar Ali and Saddiq Khan appellants had made an extra-judicial confession before him regarding their murdering Rafiq Khan. The Police after the above investigation filed a charge sheet against the three appellants and they were committed by the Chief Judicial Magistrate, Jodhpur for trial to the court of Sessions. The Sessions Judge charged all the three appellants with offence under section 302 and in the alternative under section 302 read with sections 34, 120-B 364 IPC. After trial the Sessions Judge, Jodhpur by his judgment dated April 16, 1981 found the three appellants guilty under section 302 IPC and in the alternative under section 302 read with section 34, IPC and sentenced each of them to imprisonment for life. All the three convicts have filed the present two criminal Appeal before this Court. After trial the Sessions Judge, Jodhpur by his judgment dated April 16, 1981 found the three appellants guilty under section 302 IPC and in the alternative under section 302 read with section 34, IPC and sentenced each of them to imprisonment for life. All the three convicts have filed the present two criminal Appeal before this Court. ( 4 ) BEFORE we proceed further, we may also mention one more part of the prosecution case. Riyaz Khan P. W. 3 also used to attend classes in Lucky College, Jodhpur. Rafiq Khan deceased was uncles son of Riyaz Khan. Both Riyaz Khan and the deceased were students of X class, on November 17, 1987 Riyaz Khan also attended the period of English language from 7. 30 P. M to 8 P. M. in Lucky College Jodhpur alongwith the deceased. After the period was over, both Riyaz Khan and the deceased came down from the school on the road together. It is the statement of Riyaz Khan that at that time all the three appellants were found standing on the road. Mohammed Ismail and Saddiq appellant had cycles with them. All the three appellants told the deceased that they were waiting far him and let them go for a walk. So for as Riyaz Khan was concerned, he had pain in his abdomen and, therefore, he went back to his house. However, the deceased and the three appellants went together towards Minerva Cinema. Thereafter the deceased Rafiq Khan was only seen dead by Rameshwar Singh Food Constable on November 18, 1977 at about 7 A. M. within the compounds of Ravan-ka-chabutra. The learned Sessions Judge after trial found following 7 circumstances in the case to be well established: (1) Accused Anwar Ali and Mohammed Saddiq were living as tenants in the house of the father of the deceased. (2) The deceased met Anwar Ali and Mohammed Saddiq appellants on the road outside Lucky College in the evening of November 1977 when he had come there after attending the English period in the said college. (3) Letter Ex. P. 4 demanding a ransom of Rs. 10,000/- was written by one of the accused persons i. e. Mohammed Ismail to leave the victim Rafiq Khan alive. (4) Anwar Ali and Mohammed Saddiq made extra-judicial confession to have caused the murder of Rafiq Khan before Deen Mohammed P. W. 27. (3) Letter Ex. P. 4 demanding a ransom of Rs. 10,000/- was written by one of the accused persons i. e. Mohammed Ismail to leave the victim Rafiq Khan alive. (4) Anwar Ali and Mohammed Saddiq made extra-judicial confession to have caused the murder of Rafiq Khan before Deen Mohammed P. W. 27. (5) Accused Anwar Ali got the copy-book of the deceased Art. 2 discovered from Morunda Baori by giving information to the Police. (6) Accused Mohammed Saddiq got the glass bottle Art. 7 discovered them some bushes within the compound of Ravan-ka-chabutra by giving information to the Police and this glass bottle had the thumb and finger impressions of Mohammed Saddiq. (7) The marks of the tyre of the bicycles of the accused persons, their shoes and Chappals and the Chappals of the deceased victim were found at the place of occurrence. These sets of circumstantial evidence led the learned Sessions Judge to irresistible conclusion that all the three appellants took the deceased Rafiq with them in the evening of November 17, 1977 and later on in the night committed his murder and that they alone are the perpetrators of the crime. ( 5 ) AS to the recovery of knife Art. 1 and blood stained clothes of the accused, the learned Sessions Judge held that there was no evidence linking the clothes and the knife with the murder of the victim. The report of the Serologist Ex. P. 72 did not show that human blood was found on knife Art. 1 and clothes of the accused persons. The Sessions Judge also did not give any importance to the fact that accused Anwar Ali and Mohammed Ismail after their arrest, had moved applications to the Chief Judicial Magistrate requesting therein that they pay be made approvers. ( 6 ) IT cannot be doubted that Rafiq Khan son of Saddiq Khan, a boy aged 18 to 20 years, died a homicidal death. He bad sustained 8 stab wounds and one incised wound. According to Dr. M. S. Mothari the cause of death was shock as a result of internal haemorrhage and injury to both lungs and lever. Injuries Nos. 2, 5 and 8 shown in his post mortem report Ex. P. 21 were individually and collectively sufficient in the ordinary course of nature to have caused the death of Rafiq Khan. According to Dr. M. S. Mothari the cause of death was shock as a result of internal haemorrhage and injury to both lungs and lever. Injuries Nos. 2, 5 and 8 shown in his post mortem report Ex. P. 21 were individually and collectively sufficient in the ordinary course of nature to have caused the death of Rafiq Khan. It can also not be doubted that Rameshwar Singh Foot Constable No. 1289 found the dead body of Rafiq Khan lying backwards within the compound of Ravan-ka-chabutra at 7 A. K. of November 18, 1977. It is also not in dispute that Anwar Ali and Mohammed Saddiq appellants were tenants in the house of Saddiq Khan father of the deceased. It has come into evidence of Sharif Khan that both he and his brother Saddiq Khan were living in the same house situated in Bathi Ram-ka-Oda at Jodhpur. Sharif Khan was living in that portion of the house which abuts the road. Saddiq Khan was living in the inner portion of the house. No one can throw anything in the house of Saddiq Khan from the road and no one can reach the portion of the house occupied by Saddiq Khan without first going through the Chabutra, gate, Saal and Chowk. This house has got two gates and both open on the road. Anwar Ali and Saddiq appellants were living as tenants in the house of the father of the deceased since last 20 and 22 years. Their relations with the deceased were cordial. All that is said by Saddiq Khan P. W. 26 is that 7 or 8 days before the incident Anwar Ali appellant had told him that his son Rafiq Khan speaks bad things relating to his sister and Saddiq Khan should advise his son not to do so. Saddiq Khan advised the deceased accordingly. It appears from the evidence of Riyaz Khan P. W. 3 that Anwar Ali and Saddiq appellants also used to study in Lucky College, Jodhpur but in Commerce side. The period of English language used to be held separately from Commerce classes. Mohammed Ismail, was not a student in Lucky College. According to Riyaz Khan P. M. 3 the three appellants were the principal friends of Rafiq Khan deceased. The witness used to see Mohammed Ismail appellant at the tailor shop near the house of Saddiq Khan. The period of English language used to be held separately from Commerce classes. Mohammed Ismail, was not a student in Lucky College. According to Riyaz Khan P. M. 3 the three appellants were the principal friends of Rafiq Khan deceased. The witness used to see Mohammed Ismail appellant at the tailor shop near the house of Saddiq Khan. This friendship was since last about 2 years before the incident. ( 7 ) THE other aspect of the matter is that when Saddiq Khan had left his house in the morning of November 18, 1977 in search of his son Rafiq Khan, Sharif Khan P. W. 4 while he was about to leave the house for the same purpose found the document Ex. P. 4 lying near the door of his house and by this document a ransom of Rs; 10,000/- was demanded in lieu of leaving Rafiq Khan alive. The document Ex- P. 4 remained with Sharif Khan from about 7 A. M. till 1 P. M. He showed it to Saddiq Khan on his return to his house, Sharif Khan narrated the contents of Ex. P. 4 Saddiq Khan and thereafter both of them went to Mahatma Gandhi Hospital and handed over this document to the Investigating Officer in the presence of Bundukhan P. W. 5 who is distantly related to the deceased. The Investigating Officer seized this document Ex. P. 6. From Ex. P. 4, the prosecution wants to make out a case that demand of ransom of Rs. 10,000/- from Saddiq Khan in order to spare the life of Rafiq Khan was the motive of the crime. The Investigating Officer Narpat Singh P. W. 29 arrested the three appellants on November 20, 1977 when Deen Mohammed P. W. 27 met the Investigating Officer and informed him of the extra judicial confession having been made to him by Anwar Ali and Saddiq on the 3rd day of the incident at 5 P. M. It may be mentioned that wife of Deen Mohammed P. W. 27 and mother of deceased Rafiq Khan were real sisters. ( 8 ) VARIOUS arguments were advanced by the learned counsel for the appellant before us to show that prosecution evidence has not been able to connect the appellants with the crime. Specific contention has been put forward that the precise time when the offence was committed could not be established by the prosecution. ( 8 ) VARIOUS arguments were advanced by the learned counsel for the appellant before us to show that prosecution evidence has not been able to connect the appellants with the crime. Specific contention has been put forward that the precise time when the offence was committed could not be established by the prosecution. The post mortem of the dead body of Rafiq Khan was conducted on November 18, 1975 at 2. 10 P. M. and in the post mortem report Ex. P. 1 duration of death is mentioned as within 12 to 16 hours before post mortem examination. According to the contention put forward by the learned counsel for the appellants the incident must be between 10 P. M. of November 17, 1977 and 2 A. M. of November 18, 1977 and it could not be at 8 or 9 P. M. It was next pointed out that the recovery of the copy Art. 2 was made from Cerundo Boadi on November 26, 1977 i. e. 9 days after the incident. The glass bottle which was at Ravan-ka-chabutra itself was not seized by the Police when inspection of the site was made on November 18, 1977 but was seized as late as on November 26, 1977. Attention was also invited to the fact that on November 24, 1977 the Investigating Officer had made an application before the Chief Judicial Magistrate seeking the police custody remand of the appellant and in that remand application, it was mentioned that the copy, glass bottle and knife were to be recovered. It was urged that by November 24, 1977, the appellants had not even given an information to the Police under section 27 of the Evidence Act regarding the copy, glass bottle and the knife. Information under section 27 of the Evidence Act in their respect which are Exs. P. 57, P. 58 and P. 49 were given on November 26, 1977 and November 28, 1977. It was urged that how could then the Investigating Officer know on November 24. 1977 that knife has to be recovered from Mohammed Ismail and the copy and glass bottles have also to be recovered. It was urged that the recovery of those articles are fake and concocted and the articles were not concealed. It was also argued that the prosecution has not clarified as to at what time the murder took place and where. It was urged that the recovery of those articles are fake and concocted and the articles were not concealed. It was also argued that the prosecution has not clarified as to at what time the murder took place and where. Much blood was not found at Ravanka-chabutra. It was also pointed out that it is in the evidence of Saddiq Khan that Rafiq Khan had gone to Lucky College in the evening after taking his meals His English period was from 7. 30 P. M. to 8 P. M. Dr. N. S. Mothari has deposed that the stomach was full of semi solid food material, and containing pieces of Chane-ki-dal with alcoholic smell. He has also said that semi-solid food material indicated that the death of Rafiq Khan had occurred after about 4 to 6 hours after taking meals, On this basis it was argued that the occurrence must have taken place at about mid night. It was contended that Abdul Majid P. W. 6 from whose shop Mohammed Ismail had taken the cycle on hire has deposed that the cycle was taken by Mohammed Ism Jil at 7. 05 P. M. and was returned by him at 9. 25 P. M. and this fact is supported by the entry in the cycle hire register Ex. P. 7. Thus when the incident took place near a beut mid night, there was no question of their being moulds on cycle tyres of the cycle which had been taken on hire by Mohammad Ismail and which he had already returned even before the time of occurrence at 9. 25 P. M. ( 9 ) THE learned counsel for Mohammed Ismail appellant has also vehemently argued that the Judicial Magistrate No. I, Jodhpur had no jurisdiction to take the specimen handwriting of Mohammed Ismail for the purpose of comparison by the Investigating Officer with the writing of Ex. P. 4. Reliance in this connection was placed upon the provisions contained in section 73 of the Evidence Act under which a Court can take the specimen handwriting only for the purpose of comparison by itself and not for the purpose of investigation of a criminal case. The evidence regarding comparison is therefore, inadmissible in evidence and amounts to testimonial compulsion on the accused to be a witness against himself which is against the provisions contained in Article 20 of the Constitution. The evidence regarding comparison is therefore, inadmissible in evidence and amounts to testimonial compulsion on the accused to be a witness against himself which is against the provisions contained in Article 20 of the Constitution. ( 10 ) ATTENTION of the Court was also drawn to certain other circumstances in the case. There is no clear motive for commission of the crime coming out from prosecution evidence. The motive put forward is conflicting. So far as Saddiq and Anwar Ali are concerned, the only motive put forward by Saddiq Khan is that Anwar Ali had complained to him that Rafiq Khan deceased used to speak bad things relating to his sister and Saddiq Khan advised Rafiq Khan not to do so. The other motive regarding demand of ransom by Mohammed Ismail by Ex. P. 4 does not reconcile with whatever small motive that has been alleged against Anwar Ali and Mohammed Saddiq. It was urged that if the motive of Mohammed Ismail appellant was to demand a ransom of Rs. 10,000/- from Saddiq Khan and her that purpose he had written the document Ex. P. 4, Mohammed Ismail would have taken due care that the document Ex. P. 4 falls into the hands of Saddiq Khan father of the deceased as soon as possible. He would have placed or got dropped Ex. P. 4 in the rear portion of the house in which Saddiq Khan was living. On the other hand Ex. P. 4 was found near the door of the portion of the house occupied by the uncle of the deceased Sharif Khan. A person demanding ransom of Rs. 10,000/- would not place a letter at a wrong place, and would ordinarily place it at a place from where it can fall in the hands of the concerned person easily. Then it was argued that in document Ex. P. 4 Sharif Khan was required to come with an amount of Rs. 10,000/- at the gate of Nehru Park at 9 P. M. It was expected that Mohammed Ismail would have waited upto 9 P. M. and even for 10 or 15 minutes more as the gate of Nehru Park for Saddiq Khan arriving there with the amount demanded to save the life of his son. The fact, that Mohammed Ismail returned the cycle hired by him at 9. 25 P. M. after committing the alleged murder is highly improbable. The fact, that Mohammed Ismail returned the cycle hired by him at 9. 25 P. M. after committing the alleged murder is highly improbable. There was a distance between Nehru Park and Ravan-ka-chabutra and it is difficult to imagine that within 15 or 40 minutes without reasonably waiting for ransom amount, the person demanding ransom will commit the murder at a different place and will return the hired cycle so soon. It was also urged that the conduct of Riyaz Khan P. W. 3 is highly un natural that despite the fact that Rafiq Khan had been murdered and he was related to him as his uncles son, he did not inform Saddiq Khan father of the deceased till 6 P. M. of November 18, 1977 that he had seen the deceased going with the three appellants together towards Minerva cinema after the English period was over. It is also unnatural that Saddiq Khan did not contact Riyaz Khan who was also a student in Lucky College to ascertain about his son when both the deceased and Riyaz Khan used to go to the said college to attend English class. It is again surprising, it was argued that Sharif Khan did not disclose Ex. P. 4 upto 1 P. M. and did not hand it over to the Police immediately after he had found it at 7 A. M. in the morning. When it was ascertained in the evening of November 18, 1977 from Riyaz Khan that the deceased was in the company of the appellants in the evening of November 17, 1977 why these facts were not made known to the Police by Saddiq Khan and why the Police did not arrest the appellants before 20th November 1977 and more so when Anwar Ali and Saddiq were living as tenants in the house of Saddiq Khan himself. Even Saddiq Khan did not inquire from Anwar Ali and Saddiq Khan about his son even after being informed by Riyaz Khan in the evening of November 18, 1977. Lastly, it was argued that the story of alleged oral extra-judicial confession stated to have been made by Anwar Ali and Saddiq appellants before Deen Mohammed is false and has been introduced only in order to cover up the delay in the arrest of the appellants. Lastly, it was argued that the story of alleged oral extra-judicial confession stated to have been made by Anwar Ali and Saddiq appellants before Deen Mohammed is false and has been introduced only in order to cover up the delay in the arrest of the appellants. In any event it was urged that the alleged oral extra-judicial confession was highly unnatural and was a very weak piece of evidence. On the basis of these arguments, it was urged that the circumstantial evidence adduced by the prosecution does not lead only to the conclusion of the guilt of the appellants but the circumstances are consistent more with the innocence rather than with their guilt. ( 11 ) AS already mentioned above, this case entirely rests on circumstantial evidence and there is no direct evidence to the commission of the crime. It is well settled since the decision of their Lordships of the Supreme Court in Hanumant Govind Nagunekar and another v. State of Madhya Pradesh that it is well to remember that in cases where the evidence is of circumstantial nature, circumstances from which the conclusion of guilt is to be drawn, should, in the first instance, be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ( 12 ) LOOKED from a broader point of view, the circumstances in this case are not of the character and tendency to establish the guilt of the accused persons and they do not exclude the reasonable ground about the probability of their innocence. It is an admitted case of the prosecution and is evidence from the testimony of Saddiq Khan PW 26 father of the deceased, that Anwar Ali and Saddiq were tenants in the house of Saddiq Khan PW 26 since last 20 or 22 years. It is an admitted case of the prosecution and is evidence from the testimony of Saddiq Khan PW 26 father of the deceased, that Anwar Ali and Saddiq were tenants in the house of Saddiq Khan PW 26 since last 20 or 22 years. Saddiq Khan also admits that relations between his son Rafiq deceased and Anwar Ali and Saddiq accused were very cordial. The only thing stated by him is that 7 or 8 days before the incident Anwar Ali had told Saddiq Khan PW 6 that Rafiq deceased used to talk ugly things regarding his sister and others, therefore, Saddiq Khan must give proper advice and instructions to Rafiq Khan not to do so. Rafiq Khan instructed his son Rafiq Khan accordingly. Thus a minor matter like this could not have been any motive for these two accused persons to murder Rafiq Khan. There is clear evidence of Riyaz Khan that after Rafiq Khan had come on the road after attending the English period in Lucky College, he went along with the appellants for a walk. This further strengthens the friendly relations between the appellants and the deceased. The fact, therefore, that Anwar Ali and Mohammed Saddiq were living as tenants in the house of the father of the deceased is not a circumstance at all connecting these two persons with the crime. The Sessions Judge has counted this fact also as a circumstance against these two accused persons which is beyond our comprehension. ( 13 ) THE other and inconsistent motive than with the trivial motive mentioned above is that Mohammed Ismail wanted to hold Rafiq deceased to demand a ransom of Rs. 10,000/- from the father of the deceased as a condition for release of the deceased from his clutches. For a demand of ransom, prosecution has placed much reliance on the document Ex. P. 4 which is said to be in the handwriting of accused Mohammed Ismail. That could be a good motive for commission of a crime. A person who demands reason to the tune of Rs. 10,000/- to spare the life of the victim in his hands and writes a letter for that purpose also must obviously be interested in getting the ransom amount. The natural conduct of Mohammed Ismail in such circumstances would have been that the document Ex. A person who demands reason to the tune of Rs. 10,000/- to spare the life of the victim in his hands and writes a letter for that purpose also must obviously be interested in getting the ransom amount. The natural conduct of Mohammed Ismail in such circumstances would have been that the document Ex. P. 4, which he has written for the purpose, should reach immediately in the hands of the father of the deceased so that the letter may bring the amount of Rs. 10,000/- at the gate of Nehru Park within a short span of time i. e. by 9 P. M. of November 17,1977 and more so when according to the prosecution, Rafiq deceased had come in the clutches of Mohammed Ismail only at or after 8 P. M. of November 17, 1977. The document Ex. P. 4 was neither dropped nor found in the portion of the house owned and occupied by Saddiq Khan and the deceased. It was quite convenient and easy for Mohammed Ismail to get the document Ex. P. 4 dropped in the house owned and occupied by the father of the deceased through Shri Anwar Ali and Saddiq accused persons who were tenants of the father of the deceased in the very same house. On the other hand, the document Ex. P. 4 is alleged by the prosecution to have been found at the main gate of the portion house abutting the main read which was owned and occupied by Sharif Khan uncle of the deceased. No person demanding a ransom of Rs. 10,000/- could be sure that the document Ex. P. 4 could reach in the hands of the father of the deceased within a period of one hour and no person demanding a ransom would commit the murder within 15 or 20 minutes after 9 P. M. of November 17, 1977. The above entire conduct imputed to Mohammed Ismail accused appears to be highly unnatural and difficult to be believed. The learned counsel appearing for Mohammed Ismail is correct when he argued that a person demanding ransom of Rs. 10,000/would not place a letter like Ex. P. 4 at a place. Again a person demanding ransom of Rs. The above entire conduct imputed to Mohammed Ismail accused appears to be highly unnatural and difficult to be believed. The learned counsel appearing for Mohammed Ismail is correct when he argued that a person demanding ransom of Rs. 10,000/would not place a letter like Ex. P. 4 at a place. Again a person demanding ransom of Rs. 10,000/- at the gate of Nehru Park at 9 P. M. of November 17, 1977 was expected, in the circumstances, to wait for the ransom amount at least for half an hour what that did not happen in the present case. The cycle which had been taken on hire by Mohammed Ismail at 7. 05 P. M. from the shop of Abdul Majid PW 6 was returned to Abdul Majid at 9. 25 P. M. after committing the alleged murder by him which appears to be highly improbable. There was a distance between Nehru Park and Ravan-kachabutra and it is difficult to imagine that within 15 to 20 minutes without even reasonably waiting for ransom amount, the present demanding ransom committed the murder of Rafiq at a place different than the gate of Nehru Park and returned the hired cycle so soon. This motive attributed to Mohammed Ismail appellant is, therefore very doubtful. ( 14 ) ONE of the important facts which puzzles us is highly unnatural conduct of Saddiq Khan, father of the deceased, Sharif Khan, uncle of the deceased, and Riyaz Khan cousin of the deceased, and we may mention that fact. Riyaz Khan PW 3 was really cousin of Rafiq Khan deceased. He has deposed that after the end of the English period at 8 P. M. of November 17, 1977, the deceased along with the three appellants had gone for a walk towards Minerva Cinema. Riyaz Khan was also attending classes in English period in Lucky College, Jodhpur along with the deceased. Saddiq Khan P. W. 26 had come to know that during the night intervening November 17, 1977 and November 18, 1977 his son Rafiq Khan had not returned to the house after attending the English period in Lucky College. It might be that he thought that Rafiq Khan might have gone to Cinema even in second show. However, it was clear that till the morning of November 18, 1977, Rafiq deceased had not returned to his house. It might be that he thought that Rafiq Khan might have gone to Cinema even in second show. However, it was clear that till the morning of November 18, 1977, Rafiq deceased had not returned to his house. Saddiq Khan left his house at 6 A. M. of November 18, 1977 in search of his son. The only best person to be contacted immediately by Saddiq Khan was Riyaz Khan PW 3 who was his own brothers son and who was class fellow of the deceased. To our surprise Saddiq Khan PW 6 did not collect Riyaz Khan PW 3 at any time on November 18, ]977. Riyaz Khan PW 3 was his very close relation inasmuch as he was his real brothers son and he was also a class fellow of the deceased Saddiq Khan PW 6 has deposed that he had gone to the house of his brother Niyamat Khan but Riyaz Khan. was not available at the house. Raiyaz Khan has deposed that he had gone to the tailoring shop of his maternal uncle Jahoor Mohammed where he used to work. This fact was not unknown to Saddiq Khan. He could very well go to the shop of Jahoor Mohammed and could have inquired about he son Rafiq Khan. But nothing of that sort was done by Saddiq Khan. This conduct of Saddiq Khan is highly unnatural. Again it is pertinent to be noticed that although Riyaz Khan was so closely related to Saddiq Khan and the deceased and that his father Niyamat Khan and his family members had gone to the house of Saddiq Khan for mourning the death of Rafiq Khan, Riyaz Khan himself did not go to the house of Saddiq Khan till 6 P. M. of November 18, 1977. Then it is to be noticed that Riyaz Khan had told Saddiq Khan at 6 P. M. of November 18, 1977 that he had seen Rafiq Khan deceased going with the three appellants together towards Minerva Cinema at 8 P. m. of November 17, 1977 and yet the appellants were not arrested till November 28, 1977 by Narpat Singh (PW 29 ). Investigating Officer despite the fact that two of the accused, namely Anwar Ali and Saddiq were residing in the house of the father of the deceased himself as his tenant, Saddiq Khan PW 26 did not inform the Police that the deceased was last seen in the company of the appellants. Narpat Singh PW 29 was not ready to act till Deen Mohammed PW 27 came to him and stated that Anwar Ali and Saddiq had made extra judicial confession before him on the 3rd day of the death of Rafiq Khan. Anwar Ali and Saddiq Khan still continue to be tenants of Saddiq Khan PW 26. Saddiq Khan having learnt at 6 P. M. of November 18, 1977 that his deceased son was last seen in the company of the three appellants did not act in any manner naturally expected from a father of a murdered son and the Investigating Officer took no steps whatsoever to arrest such easily available culprits till November 20, 1977. It appears that Narpat Singh wanted an extra judicial confession to act and had omitted to act before that. These facts and circumstances also render the case of the prosecution highly doubtful. ( 15 ) WE shall now closely scrutinise the circumstantial evidence relied upon by the prosecution to connect the three appellants with the murder of Rafiq Khan deceased. The first circumstance relied upon by the prosecution is that the three appellants had met Rafiq Khan deceased on the road in front of Lucky College, Jodhpur at about 8 P. M. of November 17, 1977 and they had gone together towards Minerva Cinema. On this basis, it was urged by the learned Public Prosecutor that the deceased was last seen alive in the company of the three appellants and thereafter he was only found dead. As has already been stated that the dead body of the deceased was found at Ravanka-chabutra in the morning of November 18, 1977 at about 7 A. M. by Rameshwar Singh Foot Constable P. W. 2. The prosecution has not been able to establish the time of occurrence at which Rafiq Khan was murdered. We have already stated that according to the evidence of post-mortem report of Dr. N. S. Mothari P. W. 1, duration of death of Rafiq Khan was within about 12 to 16 hours before post-mortem examination. The prosecution has not been able to establish the time of occurrence at which Rafiq Khan was murdered. We have already stated that according to the evidence of post-mortem report of Dr. N. S. Mothari P. W. 1, duration of death of Rafiq Khan was within about 12 to 16 hours before post-mortem examination. Even if the outer limit of 16 hours is taken into account, the time of death of Rafiq Khan comes to 10 P. M. and not prior to that. According to the evidence of Abdul Majid P. W. 6, Mohammed Ismail had returned the cycle to his shop at 9. 25 P. M. and entry in this respect is found in his register Art. 3 at ET{. P. 7. It is the prosecution case that moulds of cycle tyre were found at the place of the incident of coming to Ravan-ka-chabutra and going from there. If the evidence of Abdul Majid P. W. 6 is to be believed, the incident must have occurred latest between 9 P. M. and 9. 15 P. M. It could not occur at 10 P. M. If the inner limit 10:00 of the time of death of Rafiq Khan as mentioned in the post mortem report Ex. P. 1 is taken into account, the incident must have taken place at about 2 A. M. of November 18, 1977. It is also mentioned in the post-mortem report that the stomach of Rafiq Khan was full of semi solid food material containing pieces of Chane-ki-dal with alcoholic smell. Dr. N. S. Mothari has stated that the existence of semi solid food material indicated that the death had occurred about 4 to 6 hours after taking meals. Rafiq Khan had come to Lucky College after taking meals at about 7 P. M. as the English period started admittedly at 7. 20 P. M. Then also the incident must it have taken place at about mid night. The prosecution version thus becomes doubtful that the incident took place at about 9. 15 P. M. of November 17, 1977 and that Mohammed Ismail thereafter returned the cycle to Abdul Majid at 9. 35 P. M. The time of occurrence clearly does not reconcile with the return of the cycle. The prosecution version thus becomes doubtful that the incident took place at about 9. 15 P. M. of November 17, 1977 and that Mohammed Ismail thereafter returned the cycle to Abdul Majid at 9. 35 P. M. The time of occurrence clearly does not reconcile with the return of the cycle. It has been held by the decision of this Court in Dhanji v. State of Rajasthan and Narain v. State of Rajasthan, that the mere fact that the deceased was last seen in the company of the accused about 5 or 6 hours prior to the occurrence is not such a circumstance as may irresistibly lead to a conclusion that the appellant remained in the company of the deceased upto the time of the occurrence, and that the appellant alone and no other person was responsible for the murder- So in the instant case also, it cannot be held beyond doubt that the deceased remained in the company of the appellants till mid night of the night intervening November 17, and November 18, 1977. ( 16 ) MUCH reliance was placed by the learned Public Prosecutor on the letter Ex. P. 4 whereby Mohammed Ismail appellant demanded a ransom of Rs. 10,000/- for release of deceased Rafiq Khan. It was urged by him that specimen handwriting of Mohammed Ismail appellant was got taken during investigation through Shri Hanuman Ram Kudi Judicial Magistrate No. 1, Jodhpur (P. W. 22) on November 24, 1977 and they are Ex. P. 14/i to Ex. P. 14/12 on the record. These specimen handwritings of Mohammed Ismail appellant were seat to Dr. D. C. Sethi P. W. 12 along with Ex. P. 4 for comparison and he was of the considered opinion that the questioned writings Ex. P. 4 and the standard writing Ex. P. 14/1 to Ex. P. 14/12 were by one and the same person. The learned Public Prosecutor urged that thus it was established beyond doubt that Ex. P. 4 was written by appellant Mohammed Ismail demanding ransom to release Refiq Khan and this connects him with the offence of murder and also with the offence under Sec. 364, I. P. C, No doubt it is established by the evidence of the Handwriting Expert and his report Ex. P. 17 that Ex. P. 4 is in the handwriting of Mohammed Ismail appellant. P. 17 that Ex. P. 4 is in the handwriting of Mohammed Ismail appellant. The learned counsel for Mohammed Ismail, however, strenuously argued that the Judicial Magistrate No. 1, Jodhpur had no jurisdiction to take specimen handwriting of Mohammed Ismail to enable the Investigating Agency to compare with the handwriting on Ex. P. 4. Reliance was placed by him on the decision of their Lordships lot the Supreme Court in State of Uttar Pradesh v. Rambabu Misra. In Rambabu Misras case (supra) His Lordships 0. Chinnappa Reddy, speaking for the Court, laid down that the direction under second paragraph of section 73 of the Evidence Act is to be given for the purposes of enabling the Court to compare and not for the purposes of enabling the Investigating or other Agency to compare. The language of section 73 does not permit a Court to give direction to the accused to give specimen writing anticipated necessity for comparison in a proceeding which may later be instituted in the Court. We may mention that the Constitutional guarantee provided by Article 20 (3) of the Constitution of India is that no person accused of any offence shall be compelled to be a witness against himself. Facts in Rambabu Mishras case (supra) were that the Officer who was investigating into offences against him moved the Chief Judicial Magistrate, Lucknow to direct the accused to give his specimen writing for the purpose of comparison of certain disputed writings. The Chief Judicial Magistrate alleged that he had no power to do so when the case was still under investigation. The view of the Chief Judicial Magistrate was upheld by the High Court and so also by the Supreme Court. In the present case, the position is some what different. Here Narpat Singh, Investigating Officer applied to the Judicial Magistrate No. 1, Jodhpur for taking specimen hand writing of Mohammad Ismail. The Judicial Magistrate No. I, Jodhpur instead of holding that he had no power under section 73 of the Evidence Act to take the specimen handwriting of Mohammed Ismail for the purpose of investigation, took the specimen handwriting on Ex. p. 4/1 to Ex. p. 4/2. The Judicial Magistrate No. I, Jodhpur instead of holding that he had no power under section 73 of the Evidence Act to take the specimen handwriting of Mohammed Ismail for the purpose of investigation, took the specimen handwriting on Ex. p. 4/1 to Ex. p. 4/2. The Judicial Magistrate No. I, Jodhpur might have committed any illegality because section 73 of the Evidence Act did not authorise him to take specimen handwriting of the accused for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. The real question which remains is whether the taking of specimen handwriting of Mohammed Ismail by the Judicial Magistrate No. I, Jodhpur even illegally, renders the comparison illegal and that it amounts to infringement of the fundamental rights guar anteed under Article 20 (3) of the Constitution. ( 17 ) WE shall refer in this connection 20 and eleven Judges Constitution Bench decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, which was decided by a majority of 8:3. In this Constitution Bench decision, it was held that no testimonial compulsion under Article 20 (3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparisons. Thus obtaining of specimen handwriting of Mohammad Ismail for comparison with the questioned handwriting does not contraven the Constitutional guarantee given by Art. 20 (3) of the Constitution. We are therefore, of the view that even if the Judicial Magistrate No. 1 Jodhpur had illegally taken the specimen hand writing of Mohammed Ismail and they were compared during the course of investigation, it does not amount to testimonial compulsion and the fundamental rights of Mohammed Ismail under Art. 20 (3) of the Constitution are not violated. The report of the Handwriting Expert is, therefore, admissible in evidence. The doctrine neme tenetu prodere (no man is bound to accuse himself) is, therefore, not attracted. However, the question does not end there. As already discussed, if Mohammad Ismail in fact kidnapped Rafiq Khan and wanted a ransom of Rs. 10,000/- from his father under the threat of killing Rafiq Khan, his natural action would have been to place Ex. The doctrine neme tenetu prodere (no man is bound to accuse himself) is, therefore, not attracted. However, the question does not end there. As already discussed, if Mohammad Ismail in fact kidnapped Rafiq Khan and wanted a ransom of Rs. 10,000/- from his father under the threat of killing Rafiq Khan, his natural action would have been to place Ex. P. 4 in the house of Saddiq Khan (father of the deceased) so that it may have immediately reached in his hands and Saddiq Khan in order to save the life of his son may immediately have reached to the gate of Nehru Park. No person demanding a ransom would place such a document at a wrong place and at a place from where it was difficult to presume that it will reach the hands of Saddiq Khan immediately. As already stated Anwar Ali and Saddiq appellants were tenants in the house of Saddiq Khan himself and Mohammed Ismail could conveniently get Ex. P. 4 placed near the gate of the room occupied by Saddiq Khan. But Mohammed Ismail did not adopt such a convenient mode to place Ex. PA and more so when according to the prosecution, Anwar Ali and Saddiq are also co-participators in the crime. It is also highly unnatural and improbable that when Mohammed Ismail had given the target time of 9 P. M. to Saddiq Khan to reach at the gate of Nehru Park, he did not wait even for a second and proceeded immediately to Ravan-ka-chabutra to murder Rafiq Khan. Ex. P. 4 was not found by Sharif Khan during the entire night intervening November 17 and November 18, 1977. It was also not found when Saddiq Khan met his brother Sharif Khan in the morning of November 18, 1977 and told Sharif Khan that Rafiq Khan had not retunred during the night. Sharif Khan stated that it was found by him after his brother Saddiq Khan had left in search of his son. Despite the fact that Sharif Khan found the document Ex. PA at about 7 A. M. or so, he did not immediately hand it over to Police. He waited till 1 P. M. when Saddiq Khan returned to the house. No person would have detained a document like Ex. PA for such a long time. In such circumstances, there is no guarantee that Ex. PA at about 7 A. M. or so, he did not immediately hand it over to Police. He waited till 1 P. M. when Saddiq Khan returned to the house. No person would have detained a document like Ex. PA for such a long time. In such circumstances, there is no guarantee that Ex. PA was not subsequently forced to be written from Mohammed Ismail during the course of investigation. Bundu Khan P. W. 5 and Deen Mohammed P. W. 27, who are not Motbirs about handing over of Ex. PA by Sharif Khan to the Investigating Officer at M. C. Hospital, Jodhpur are not independent witnesses but are close relations to deceased Rafiq Khan and his father. The learned Public Prosecutor relied upon the decision of the Supreme Court in Murarilal v. State of Madhya Pradesh. The facts in Murarilals case are distinguishable from the facts of the present case. In that case M. D. Sonawala (deceased) used to live alone in one of the two quarters in the compound of Parsi Dharam Shala at Jabalpur. He had gone out for dinner and returned home at about mid night and was found to be murdered in the morning. The Investigating Officer came to the place of incident and found in the room of the deceased a prescription pad Ex. P. 9 on which there were writings A to F of Ex. P. 2. Those writings on prescription pad found in the room of thy deceased were compared with the writings found in the house of the accused and that connected the accused with the crime. Writings found on the prescription pad in the room of the deceased by the Investigating Officer on the very next morning of the incident conveniently went to show that it was the accused who has gone into the room of the deceased on that night. In the present case, written Ex. PA was not found in the house of Rafiq Khan or Saddiq Khan. Rafiq Khan was not murdered in his house. He was murdered at Ravan-ka-chabutra, Ex. PA was found in the room of Sharif Khan and was handed over to the Investigating Officer after a considerable delay. Thus the decision in Murari Lals case is not helpful to the prosecution and the possibility cannot be ruled out that it was subsequently obtained from Mohammed Ismail during the course of investigation. Ex. PA was found in the room of Sharif Khan and was handed over to the Investigating Officer after a considerable delay. Thus the decision in Murari Lals case is not helpful to the prosecution and the possibility cannot be ruled out that it was subsequently obtained from Mohammed Ismail during the course of investigation. Ex. PA therefore, does not conclusively lead to the inference of guilt of Mohammed Ismail. ( 18 ) THEN we come to the extra-judicial confession started to have been made by Anwar Au and Saddiq before Deen Mohammed. At the very out set, we may observe that extra judicial confession and that also oral is a very weak type of evidence and the Court should be assured of its truthfulness and credibility. Here is a case where Saddiq Khan father of the deceased did not care to enquire if Anwar Ali and Saddiq who were tenants in his own house had returned to the house during that night or not. Even after coming to know from Riyaz Khan that he had seen the deceased in the company of Anwar Ali, Saddiq and Mohammed Ismail neither Saddiq Khan nor Sharif Khan made any inquiry what sever from Anwar Ali and Saddiq about the whereabouts of Rafiq Khan. It is simply unbelievable that Anwar Ali and Saddiq Khan who participated in the mourning of Rafiq Khan at the house of Saddiq Khan and who were weeping in grief would voluntarily tell Deen Mohammed P. W. 27 after three days of the incident that they had committed murder of Rafiq Khan. In our opinion, this extra judicial confession has been introduced simply in order to cover up the delay which the Investing Officer had made in the arrest of the appellants. The Investigating Officer did not act before he got this statement from Deen Mohammed that Anwar Ali and Mohammed Saddiq made extra-judicial confession before him. The simple manner in which the extra-judicial confession is said to have been made to Deen Mohammed shakes its correctness, truthfulness and credibility and we are not inclined to accept the testimony of Deen Mohammed. The Investigating Officer did not act before he got this statement from Deen Mohammed that Anwar Ali and Mohammed Saddiq made extra-judicial confession before him. The simple manner in which the extra-judicial confession is said to have been made to Deen Mohammed shakes its correctness, truthfulness and credibility and we are not inclined to accept the testimony of Deen Mohammed. ( 19 ) THEN the only circumstances put forward on behalf of the prosecution in the case are that Anwar Ali accused got a copybook Art. 2 of the deceased recovered by giving information to the Police from Gorunda Baodi, that Mohammed Saddiq accused got an empty bottle Art. 7 discovered to the Police by giving information and this bottle had thumb and finger impression of Mohammed Saddid and lastly that marks of the tyres of the bicycle of Mohammed Ismail and Saddiq and that of shoes and Chap pals of the accused persons and that of the deceased were found at the place of the occurrence. No other circumstantial evidence has been relied upon by the Sessions Judge. So far as recovery of knife Art. 1 is concerned, the report of the Serologist Ex. P. 72 does not show that human blood was found on knife Art. 1 or on the clothes of the accused persons. The discovery and recovery of knife Art. 1 and clothes of the accused persons are, therefore, of no help to the prosecution. Learned Public Prosecutor also relied upon a circumstance about the conduct of Anwar Ali and Mohammed Ismail appellants that they had entered into a race to become approvers in this case by making applicants Ex. P. 61, Ex. P. 64 and Ex. P. 67. ( 20 ) WE shall now proceed to deal with these pieces of circumstantial evidence relied upon by the prosecution. We have already stated that the trial court has not connected the appellant Mohammed Ismail with the crime on account of recovery of knife. Art. 1 knife was sent for Chemical Examination and with regard to it the report Ex. P. 72 of the Chemical Examiner was that the blood stains were disintegrated and their origin could not be determined. Mohammed Ismail was arrested on November 20, 1977 at 9 P. M. The alleged recovery of knife was made on November 29, 1977. It was a belated recovery. P. 72 of the Chemical Examiner was that the blood stains were disintegrated and their origin could not be determined. Mohammed Ismail was arrested on November 20, 1977 at 9 P. M. The alleged recovery of knife was made on November 29, 1977. It was a belated recovery. Anwar Ali was also arrested on November 20, 1977 at 7. 45 A. M. from the house of Saddiq Khan where he was living as tenant. The prosecution case is that a copy Art. 2 was recovered on the basis of information Ex. P. 57 given by Anwar Ali on November 26,1977. This recovery was made at the instance of Anwar Ali from Gorunda Baodi where it was found floating over some rubbish in the Baodi. Riyaz Khan P. W. 3 has deposed that notes written on Art. 2 were in the handwriting of Rafiq Khan deceased and these notes were taken by the deceased during English period of November 17, 1977. Shiv Narain P. W. 17 is Principal of Lucky College Jodhpur. According to him, he had taken English period on November 17, 1977 and had taught what was noted down in the copy Art. 2 and further that the deceased had attended the class. Saddiq was also arrested on November 20, 1977. The prosecution has produced evidence to the effect that an empty bottle Art. 7 was recovered on November 27, 1977 on the basis of information Ex. P. 58 given by Saddiq appellant from inside the bushes near a babool tree in the compound of Ravan-ka-chabutra. Specimen finger prints of Saddiq appellant were taken during the course of investigation and the specimen prints and the bottle were sent to Finger Print Bureau in sealed condition. Shri P. N. Tankha Finger Print Expert P. W. 13 opined that chance print Q. 1 was similar and identical with the specimen right of thumb print of Saddiq appellant. Similarly chance prints Q 2 (a) and Q 2 (b) were found similar and identical with the specimen prints of index finger and right middle finger respectively of Mohammed Saddiq appellant. So far as chance prints mark Q 2 (c) is concerned, it was opined that it was unfit for comparison being not clear in ridge details. The recovery of the bottle was made on November 27, 1977. So far as chance prints mark Q 2 (c) is concerned, it was opined that it was unfit for comparison being not clear in ridge details. The recovery of the bottle was made on November 27, 1977. It is here pertinent to note that after the arrest of all the three appellants on November 20, 1977, they were produced before the Chief Judicial Magistrate Jodhpur on November 21, 1977 by the police for police custody remand. The application in this regard is Ex. P3 on the record. In the application dated November 21, 1977, the Investigation Officer had sought remand of all the three appellants stating inter alia that the Police has to recover the weapon of offence (knife), petrol bottle and copy of the deceased. By November 21, 1977 none of the accused had given any information whatsoever regarding the knife, bottle or copy. The information in this regard were given on 26th, 27th and 28th November 1977. How could the Investigating Officer dream on November 21, 1977 that recovery of knife, bottle and copy has to be made when he had no information in their regard on that day and got the information 5 to 7 days subsequent to that. This facts a doubt in the recovery of these three articles at the instance of the respective accused persons and possibility cannot be ruled out that these articles were planted subsequently and recovery was attributed to the three appellants and more so when there is delayed recovery. ( 21 ) THEN there is evidence of moulds and Chhapals and cycle tyres at the place of the occurrence. The moulds of these articles were taken by the Investigating Officer on plaster of Paris. Tyres of cycles and Chapples were sent for comparison of moulds taken from the place of the occurrence with the articles sent for comparison. The opinion given by Shri P. M. Nankha P. W. 13 was that moulds Art. 8 and Art. 9 reasonable with left foot and right foot Chappals Articles 22 23 recovered from the house of Mohammed Ismail. Moulds Articles 28 and 29 resemble with the rear and front tyres Arts. 12 and 13 taken out of cycle Art. 4, recovered from the shop of Abdul Majid which Mohammad Ismail is said to have taken on hire. Moulds Arts. Moulds Articles 28 and 29 resemble with the rear and front tyres Arts. 12 and 13 taken out of cycle Art. 4, recovered from the shop of Abdul Majid which Mohammad Ismail is said to have taken on hire. Moulds Arts. 18 and 19 resemble with left and right food Chappals Art. 24 and Art. 25 recovered from the possession of Anwar Ali. Moulds Art. 10 and Art. 11 resemble with left foot and right foot. Chappals Arts. 20 and 21 recovered from Mohammad Saddiq. Out of the moulds of cycle tyres H. 1 H. 2, only one mould resembled with the rear tyre Art. 31 of cycle Art. 32 recovered from the house of Mohammad Saddiq appellant. This circumstance has been placed by the prosecution on record with a view to establish that Mohammed Ismail and Saddiq appellants had taken their cycles to Ravan-ka-chabutra where the incident took place. We have already discussed the improbability of the incident having taken place before 9. 25 P. M. of November 17, 1977 for the simple reason that cycle was returned by Mohammed Ismail at 9. 25 P. M. and it was highly unnatural that Mohammed Ismail even did not wait for few minutes for the amount of ransom which he had demanded by Ex. P. 4. The law is settled that to identify the foot print, afresh foot mark of the suspected person should be obtained and compared with the original. Foot print produced in walking is generally larger than one produced in standing position. In the Book Criminal Investigation Sweet and Maxwell Ltd. London, Edition 1962 Chapter XI (Foot print 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 Rule 6. 26 of the Rajasthan Police Rules, 1965 which reads as under: In making moulds for production as evidence the following precautions should be observed: (a) The foot prints found on agree of the crime must be pointed to the reliable witnesses at the time of these same witnesses must be present during the preparation of moulds. (b) The letter must also be signed or marked by the witnesses and the Officer preparing them while setting. (b) The letter must also be signed or marked by the witnesses and the Officer preparing them while setting. (c) After the above procedure is completed a mould should be prepared in the presence of the Magistrate or witness and one of the foot prints of the suspected 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 witnesses. The emphasis in clause (c) above is on the taking of the specimen casts of the foot prints. What is of importance is that the specimen foot print of the suspected must be taken and that control impression should be compared with the chance impression found on the scene of the occurrence. In the instant case during investigation casts of Chappals of all the three appellants and of the two cycles were not taken by the Investigating Officer. The chance impression moulds taken were compared with the soles of the Chappals and cycles recovered in the case. This method of comparing accidental impression with the sole of Chappals themselves has been held to be highly improper and undesirable and open to grave risks in Hariji Ram v. State of Rajasthan. There fore such improper comparison also does not lead, to implicates the three appellants with the crime. ( 22 ) THE prosecution has also relied on applications made by Mohammed Ismail and Anwar Ali for becoming approvers in the case. The race of becoming approvers between Mohammed Ismail and Anwar Ali does not lead to the only hypothesis that they or any of them participated in the crime. This subsequent conduct of Mohammed Ismail and Anwar Ali is capable of explanation that both of them were only interested that they say not be implicated in a serious crime either because both or any of them thought that he was innocent or both or any of them know that some other has committed the crime. The trial court has also not given any importance to these circumstances and has observed: It is in the knowledge of every body that in order to get the advantage people, at times, do act foolishly. The trial court has also not given any importance to these circumstances and has observed: It is in the knowledge of every body that in order to get the advantage people, at times, do act foolishly. It is an illustration of that human conduct Any way no adverse inference can be drawn against the accused Anwar Ali and Mohammed Ismail simply because they submitted the above applications to become approvers in the case. This conduct on their part does not constitute line in the chain of circumstantial evidence. ( 23 ) THUS on a review of the entire evidence we are of the opinion that the prosecution has failed to establish beyond reasonable doubt that all or any of the appellants committed the offence charged against them. More suspiction is not enough. It was for the prosecution to establish the offences charged against the appellants betond reasonable doubt. We give benefit of doubt to all the three appellants and acquit them of the offences charged against them. ( 24 ) WE allow the appeal set aside the convictions and sentences passed by the trial court and acquit the appellants. All the three appellants are in Jail. They shall forthwith be released, if not required in any other case. Appeal allowed