JUDGMENT : - Kantian Singh, J. 1. RAM Autar and Brij Lal have filed their separate Criminal Appeals being Nos. 3242 of 1979 and 3248 of 1979 respectively, against the judgment and order dated 4-12-79, passed by Sri B. N. Mohiley, the then Second Additional Sessions Judge, Moradabad, whereby each of them has been convicted under section 302 IPC or in the alternate Sec. 394/34 IPC and sentenced to undergo life imprisonment in Sessions Trial No. 148 of 1979. Since both the appeals are out of one and the same Judgment, they are being disposed of by this common Judgment. 2. IN % nutshell the prosecution case is that Sri Ram Chandra Sharma Advocate was running an Educational Institution known as "Ram Chandra Baiika Vidyalaya" in the campus of his Bungalow situate in Mohaila Chandra Nagar, within the jurisdiction of police station civil Lines, Moradabad. IN the intervening night of 13th and 14th October, 1978, Sri Ram Chandra Sharma Advocate was sleeping in Room No. 5 of the School. Pradeep Sharma, who is son of Sri Ram Chandra Sharma, was informed at about 6.00 a.m. on 14-10-78 at his residence 147. Awas Vikas Colony, Civil Lines, Moradabad, by Hardayal, Hem Singh, Smt-Veermati and Smt. Munni. employees of the school, that the doors of the room of Babu Ji were half opened, light was on and repeated calls met no response, Thereupon Pradeep Sharma came to the place of occurrence. He found his father Ram Chandra Sharma lying in a pool of blood on the ground under a double bed and two knives smeared with blood were also lying there. Appellant Brij Lal Chaukidar of the school was absent from school since last night and his room was also lying locked, hence his hands in the commission of offence was suspected. Accordingly an FIR was lodged at 7.45 a.m. on 14-10-78 at police station Civil Lines, Moradabad. S. The investigation of the case was entrusted to Sub-Inspector Kali Ram Singh (PW 14). He reached the spot and recorded statements of Pradeep Sharma and others. Then he prepared the inquest report of the dead body and sent it to mortuary for post-mortem examination. Autopsy on the body of the deceased was conducted by Dr. Ravi Kant Mishra PW 10. He found ante mortem Injuries, which consisted of 9 incised wounds, one contusion and three abrasions. Then he prepared the inquest report of the dead body and sent it to mortuary for post-mortem examination. Autopsy on the body of the deceased was conducted by Dr. Ravi Kant Mishra PW 10. He found ante mortem Injuries, which consisted of 9 incised wounds, one contusion and three abrasions. The Investigating Officer also prepared a site plan, took into the custody the blood stained knives lying on the spot and prepared their recovery memos. He also took into the possession the blood stained Chadar, Bed-sheet, Bush-shirt, one Handkerchief, Underwear, Baniyan, Hawai Chappals and blood stained and unstained pieces of floor including other articles and also prepared the recovery memos. 4.Brij Lal was arrested on 16-10-78 from double phatak and was lodged in police lock-up at 10.35 a.m., while Ram Autar was arrested from the Hotel of one 'Ganpat on the same day put in police lock up at 12.30 p.m. On interrogation the accused showed their willingness to handover the incriminating articles taken away by them from the place of occurrence. Hence they were taken on police remand till 21st October, 1978. The accused also disclosed that during the incident they too had sustained some injuries, hence they were sent for medical examination. On medical examination, Dr. B. K. Sharma PW 2, found three contusions, one incised wound, three traumatic swelling and two abrasions on the person of Brij Lal at 5.05 p.m. on 16-10-78. Duration of first three injuries, i.e. one abraded contusion, one incited wound and one abrasion, was 2 1/2 days old while rest of the injuries were fresh. Similarly, on the person of Ram Autar two fresh contusions were found. The Principal of the School, who had gone to Delhi in connection with her treatment, returned at 7.00 p.m. on 16-10-78 and handed over a list of missing articles Ext Ka-6. At the pointing out of Brij Lal his blood stained Bush-shirt and pant, currency notes of Rs. 1600/- and 40 dollars, wrapped in an old handkerchief of the deceased, were recovered while at the pointing out of Ram Autar one blood stained Bushshirt and Pant of his own, one purse containing currency notes of Rs. 900/- and 39 dollars and one M.S.T (Railway Pass) of the deceased were recovered from their respective quarters lying hidden under the ground The recovery memos Exhibit Ka- 4 and Ka-5 were prepared and got signed by the witnesses. 900/- and 39 dollars and one M.S.T (Railway Pass) of the deceased were recovered from their respective quarters lying hidden under the ground The recovery memos Exhibit Ka- 4 and Ka-5 were prepared and got signed by the witnesses. The accused persons were sent again for medical examination on 21-10-78. Dr. Ajai Pal Singh Sengar, PW 15, found no fresh injury on the body of Brij Lal except a contusion noted at Serial No. 8 in the injury report Ext. Ka-2 which was 5 days old, while on the person of Ram Autar 5 days old two contusions were found. 5.On 30-10-78, the remaining investigation of the case was transferred to D. P. Singh, S H.O., who after completing the same submitted charge sheet against the appellants. 6 The prosecution examined 16 witnesses in all to prove its case but there is no single eye witness of the incident. The whole case rests on circumstantial evidence. The learned, counsel for the appellants pointed out following circumstances emerging from the evidence available on record :- 1. Deceased Ram Chandra Sharma was a practising advocate. He was a well to do person, having Bungalow Car etc. He had parted 'Balika Vidyalaya in the campus of his Bungalow. He used 'to sleep in room no. 5 of the school with Smt, Sushma Kulshrestha, Principal of the School. Appellant Brij Lal was working as Chaukidar while Ram Autar was an employee on the Photostat shop of Pradeep Sharma. Both the appellants were residing in separate quarters in the campus of the School. The murder of Sri Ram Chandra Sharma was committed in the intervening night of 13/14th of October, 1978. IN the morning of 14th October, 1978, the murder was detected and Brij Lal, who was on duty as Chaukidar, was found missing in the morning, hence he was suspected to be the culprit. Similarly, Ram Autar appellant, who was present in the morning but was found missing when the informant-returned to the spot after-lodging the FIR. Both of them remained absconding till their arrest on 16-10-78. Prosecution examined Pradeep Sharma as PW 1 to prove the fleeing away of the appellants from the spot. 2. Similarly, Ram Autar appellant, who was present in the morning but was found missing when the informant-returned to the spot after-lodging the FIR. Both of them remained absconding till their arrest on 16-10-78. Prosecution examined Pradeep Sharma as PW 1 to prove the fleeing away of the appellants from the spot. 2. At about 11.00 p.m in the fateful night both the appellants were seen going towards the verandah of the room where the deceased was sleeping when they were accosted by Hem Singh, an employee of the school as to why they were awaken. Thereupon Brij Lal replied that he was perturbed hence he got Ram Autar awakened. Nothing was abnormal and he was asked to go. To prove that part of the evidence the prosecution has examined Hem Singh aforesaid as PW 4. At about 9.00 a.m. on 13-10-78, both the appellants were taking tea at the Tea stall near the Loco Shed. Brij Lal was saying to other person that Principal had gone to Delhi and she has asked him to achieve mission Other person told that it was propitious time and no better opportunity would be available in future. To prove that link of the evidence, the prosecution has examined PW 3 Ashok Kumar Saxena, who is said to have over- heard the conversation of the appellants. 3. DURING the course of interrogation the accused confessed before the police that some scuffle took place between the deceased on one hand and the accused on the other, and both the accused sustained some injuries in that scuffle. In order to prove this part of evidence, the prosecution examined two doctors, namely, Dr. B. K. Sharma PW 4 and Dr. A. P. Singh Sengar PW 15, who found some injuries on their bodies. The duration of some of those injuries tallied with the time of incident. 4. THE accused persons sustained blood stains on their clothes i.e. pants and shirts in the incident and those blood stained pants and shirts were recovered at their pointing out. In order to prove this circumstances, PW 14 Kali Ram Singh Sub-Inspector, PW 5, Om Prakash and PW 6 Smt. Sushma Kulshreshtha were examined. Currency notes of Rs. 4. THE accused persons sustained blood stains on their clothes i.e. pants and shirts in the incident and those blood stained pants and shirts were recovered at their pointing out. In order to prove this circumstances, PW 14 Kali Ram Singh Sub-Inspector, PW 5, Om Prakash and PW 6 Smt. Sushma Kulshreshtha were examined. Currency notes of Rs. 1600/- and 40 dollars wrapped in a rotten handkerchief were recovered at the pointing out of Brij Lal appellant from a pit after removing some bricks in his quarter, in the similar manner, a purse containing currency notes of Rs. 900/- and 39 dollars were recovered at the pointing out of Ram Autar from a pit after removing some bricks from the floor of his quarter. To prove this piece of evidence, the prosecution examined PW 5 Om Prakash, PW 6 Smt. Sushma Kulshreshtha and Sub Inspector Kali Ram Singh PW 14. Those articles of the deceased taken away by the accused from the place of occurrence and hidden in their rooms and subsequently recovered and were identified by PW 6 Smt. Sushama Kulshreshtha as that of deceased at the time of recovery. 7 Both the accused appellants made-extra judicial confession to Ram Kripal Singh and to prove that confession the prosecution examined Ram Kripal Singh PW 16 but this evidence was discarded by the trial Judge being not reliable. 5. REST of the witnesses examined by the prosecution were of formal nature. 6. BOTH the appellants denied the prosecution version though they admitted that they were residing in the School quarters. Brij Lal admitted in his statement recorded under section 313 CrPC that he was working as Chaukidar and was on leave on the day of occurrence hence his quarter was locked. He sustained injuries as a result of severe beating by the Sub- Inspector. He also denied the recovery of any article at his pointing out. He also denied the blood stained pant and shirt as his own. He further stated that he was arrested by the Sub-Inspector on 15-10-78 from hit Sasural in village Maulabad, police station Sikandrabad. District Bulandshahr. He was kept in police lock-up till 21-10-78 where he was given severe beating by the Sub Inspector and his family members were also detained at the police station and a telegram was sent by his brother. He further stated that he was arrested by the Sub-Inspector on 15-10-78 from hit Sasural in village Maulabad, police station Sikandrabad. District Bulandshahr. He was kept in police lock-up till 21-10-78 where he was given severe beating by the Sub Inspector and his family members were also detained at the police station and a telegram was sent by his brother. He turned out Pradeep Sharma from the premises of the School at the instance of the deceased, hence Pradeep Sharma was inimical and his involvement in this case was at the instance of Pradeep Sharma. Ram Autar the other co-accused stated in his statement recorded under section 313 CrPC that his quarter was not locked as he was present there. He denied his absconding and he sustained injuries as a result of beating by the Sub-Inspector. He also denied the blood stained pant and shirt purported to have been recovered at his pointing out to be his own. He was present through out till the post mortem of the deceased was conducted. He was arrested at the Mortuary. He had passed Intermediate examination and was studying B T.C. The learned trial Judge after going through the evidence on record held both the appellants guilty of the offence charged with and accordingly he convicted and sentenced each of them as stated above. 7. THE appellants have now approached this Court by filing the above appeals against their conviction and sentence as awarded by the court below. 8. AT the very out set learned counsel for the appellants emphatically argued that the murder might have been committed by the person hired by the informant Pradeep Sharma or Smt. Sushama Kulshreshtha, the lady Principal, who had a very strong motive to eliminated the deceased. Some civil and criminal litigation had taken place between Pradeep Sharma and his deceased father and the terms between them were strained. Pradeep Sharma was son of the deceased from his first wife. Second wife of the deceased is still alive and she had divorced him. Smt. Sushma Kuishreshtha was his third wife, though she had a daughter from her earlier husband. The deceased was thinking to alienate bis whole property to Smt. Sushama Kulshreshtha, Pradeep Sharma had a feeling that his father would alienate the whole property to Smt. Sushama Kulshreshtha and would deprive him of his estate. Smt. Sushma Kuishreshtha was his third wife, though she had a daughter from her earlier husband. The deceased was thinking to alienate bis whole property to Smt. Sushama Kulshreshtha, Pradeep Sharma had a feeling that his father would alienate the whole property to Smt. Sushama Kulshreshtha and would deprive him of his estate. He had a very strong motive to hire the murderers Besides, Smt. Sushama Kuishreshtha had also a strong motive in the commission of the murder of Ram Chandra Sharma deceased as at one stage the deceased was not agreeable to alienate the whole property either to Smt Sushama Kuishreshtha herself or to her daughter, born from the earlier husband. The prosecution itself has introduced in the statement of PW 3 Ashok Kumar Saxena the story that Brij Lal was saying to some other person that Principal had gone to Delhi and she had asked him to complete the mission. On the basis of that statement the contention of learned counsel for the appellants is that initially Smt. Sushama Kuishreshtha was likely to be the mala accused in the present crime, but later; on she supplied some articles and money to police for plantation against the appellants. The learned counsel for the appellants also contended that the deceased was engaged in various illegal acts and was a man of sexy nature. It is also stated that the deceased had American currency in his possession and was dealing in the same. Therefore, the possibility that he was murdered by smugglers trading in foreign exchange can also not be excluded. Above mentioned submissions, if necessary, would be dealt with at the appropriate place. First of all we will examine the prosecution evidence to see whether the circumstantial evidence as relied upon by the prosecution and believed by the court below is coherent and leads to be other conclusion except the hypothesis of guilt of the appellants. 9. SO far as first circumstance regarding absconding of the accused is concerned, the learned counsel for the appellants contended that the appellant Brij Lal was on leave and he was not present in Moradabad on the day of incident, whereas Ram Autar was through out present there and he was arrested by the police from the Mortuary when the post mortem on the dead body was being conducted. Even if it is assumed for arguments sake that the appellants were not seen in the School campus on 14-10-78 after the incident, from that contemporary absence it cannot be concluded that the appellant and none else were the perpetrator of crime. One should not lose sight of the fact that the prowess and wisdom differ from man to man. On incidence of a ghastly mishap different people behave and react differently. Some run way from the spot; some weep; others become more agile: some become mum and stunned. If on the incident of barbarous murder of the renowned person namely Sri Ram Chandra Sharma Advocate, in his own campus, the appellants had run away out of fear, particularly when his wife was out of station, that does not mean that they were the real culprit and responsible for commission of the murder, particularly when there is no single eye witness of the incident. Therefore the circumstantial evidence has to be read and scrutinized with utmost care and caution especially when there are no less militating circumstances against the son and wife of the deceased also to cast an eye of suspicion on them also. 10. SO far as circumstance No. 2 that the appellants were seen in the night moving towards the place of occurrence and talking to each other is concerned, the learned counsel for the appellants contended that both the appellants were residing in the same campus and In the fateful night appellant Brij Lal was on duty as Chaukidar of the School If both the appellants were found awaken and talking in the school campus by Hem Singh nothing adverse can be inferred from that fact as there is no special feature in his statement connecting the appellants with the actual commission of murder. It is true that PW 4 Hem Singh stated that when he accosted the accused they were going to wards the verandah attached to the room in which the deceased was sleeping On a query by Hem Singh, Brij Lal replied that he was somewhat disturbed, hence he had awaken Ram Autar otherwise there was nothing abnormal. Here presence of the accused persons in the school campus in night, particularly when Brij Lal happened to be the chaukidar was not a circumstance for suspecting the conduct of the appellants by Hem Singh. Here presence of the accused persons in the school campus in night, particularly when Brij Lal happened to be the chaukidar was not a circumstance for suspecting the conduct of the appellants by Hem Singh. Hem Singh was also an employee of the School and had gone to inform Pradeep Sharma informant about some thing unusual happening in the room where the deceased was sleeping, but he did not Inform him that he had seen the accused persons strolling in the night or in the perturbed state at about 1100 p.m.' in the night. Had he seen the accused persons going and talking in She night he mast have disclosed this fact to the informant prior to lodging the FIR. Thus, in our opinion, it is a very weak type of evidence which does not inspire confidence and from his uncorroborated testimony no conclusion of guilt can be culled out. The learned counsel for the appellants in connection with the 3rd circumstance regarding the over hearing the conversation of accused persons contended that the Trial Judge erroneously accepted this piece of evidence against the accused persons that Brij Lal was saying to his accomplice that Principal had gone to Delhi. She had asked him to achieve the mission. Thereupon his compeer replied that it was the opportune and no better opportunity would be available in future. That conversation was over heard by PW 3 Ashok Kumar Saxena. He was declared hostile by the prosecution and was cross examined by the State counsel. The witness denied to have disclosed the name of Ram Autar in the statement recorded under section 161 CrPC by the Investigating Officer. From the statement of Ashok Kumar Saxena PW 3 it does not appear to us that the alleged task was assigned by the lady Principal to be accomplished by the appellants. He admitted that he had not disclosed that fact to any body prior to his statement recorded under section 161 CrPC by the Sub-Inspector. He stated before the court below that he was called by Sub-Inspector in the School through a Head Constable and then his statement under section 161 CrPC was recorded. He also admitted that in his presence the owner of the Tea Stall where the conversation was over heard was not called for interrogation by the Sub-Inspector. He stated before the court below that he was called by Sub-Inspector in the School through a Head Constable and then his statement under section 161 CrPC was recorded. He also admitted that in his presence the owner of the Tea Stall where the conversation was over heard was not called for interrogation by the Sub-Inspector. From the conversation between the appellants over heard by Ashok Kumar Saxena, it does not appear that the accrued were hatching any conspiracy for committing murder of Ram Chandra Sharma. We do not find the evidence of Ashok Kumar Saxena PW 3 reliable and worthy of credence inasmuch as the witness did not disclose the fact of over hearing of talks of the accused to any other person prior to Sub Inspector who summoned him in the School through the Head Constable and this witness had already been declared hostile by the prosecution. 11. IN connection with circumstances No. 4 that accused sustained some injuries in the incident, the learned counsel for the appellants contended that the appellants were severely beaten by the police and the duration of none of the injuries of any of the appellants synchronished the time of the incident. Hence it cannot be inferred from the statement of the accused to the I.O. that they sustained injuries in the scuffle with the deceased during the commission of murder. We have carefully examined the submission of the learned counsel for the appellants on the basis of the evidence on record. In this connection we may refer to the injury reports Ext. Ka-2, Ka-3, Ka-2 and Ka-29 and the statements of two doctors, who medically examined the accused persons and the relevant G.D. entries of the police station. The incident took place in the night of 13/14-10-78, Dr. B. K, Sharma PW 2 examined the injuries of Brij Lal at 5.05 p.m. on 16-10-78 and found 3 injuries viz. one abraded contusion, one incised wound and one abrasion. Injury Nos. 1, 2 and 3 were found 2-1/2 days old, while other injuries namely, 3 traumatic swelling, one abrasion and two contusions were fresh in duration. On the person of Ram Autar, on his medical examination at 5.30 p m. on 16-10-78, only 2 contusions were found. According to injury report of Ram Autar Ext. Injury Nos. 1, 2 and 3 were found 2-1/2 days old, while other injuries namely, 3 traumatic swelling, one abrasion and two contusions were fresh in duration. On the person of Ram Autar, on his medical examination at 5.30 p m. on 16-10-78, only 2 contusions were found. According to injury report of Ram Autar Ext. Ka-3, those 2 contusions were found to be fresh, whilst according to the statement of Doctor B. K. Sharma PW 2 those two injuries could have been sustained during the night of 13/14-10-78. He admitted that he had not noted the colour of those two contusions hence he noted them as fresh in the injury report. Dr. B. K. Sharma PW 2 also admitted that the injury No. 1 of Brij Lal was a contusion with abrasion, hence he noted it as 2 1/2 days old. However, in respect of injury No. 2 of Brij Lal he admitted that he had not noted its condition as he had not mentioned whether it was clotted or not or pus was present. He had also not noted down about the margin of those incised wounds. Dr. Ajai Pal Singh Sengar PW 14 examined the injuries of both the accused on 21-10-78 at 12.30 p.m. and 12.15 p.m. respectively and admitted that the injuries of both the appellants could have been sustained on 16-10-78. G.p. no. 19 at 10.35 a.m. is Indicative of the fact that after Brij Lal was arrested some injuries were found on his person. Injuries nos. I, 2 and 3 were old while Injuries nos. 4 to 7 were fresh, caused during the course of arrest. There is no mention about 2 contusions i.e. Injuries nos, 8 and 9 of Brij Lal in the Ext. Ka-2. He was arrested at 12.30 p.m. as mentioned in G.D. dated 16-10-78 which shows that the injuries on the body of Ram Autar were inflicted during the course of his arrest. In view of the discrepancy noted above, we are unable to hold the appellants had sustained any injury in the fateful night, on 13/14-10-78. 12. REGARDING the circumstance no. 5 that accused received blood stains on their clothes which were recovered at their pointingout, the learned counsel for the appellants contended that the blood stained pant and shirt recovered [at the pointing out of the accused do not inculpate. 12. REGARDING the circumstance no. 5 that accused received blood stains on their clothes which were recovered at their pointingout, the learned counsel for the appellants contended that the blood stained pant and shirt recovered [at the pointing out of the accused do not inculpate. On the other hand this piece of evidence is planted by the police Inasmuch as there is no evidence on record to prove that the appellants had ever out on those recovered pants and shirts before the incident If would not suffice to presume that those pants and shirts might have been worn at the time of incident and might have stained with blood during the course of incident. The blood group of the blood stains on pant and shirt alleged to be of Brij Lal was not of the blood group of the blood stains found on the articles of the deceased. We examined the submission of the learned counsel thoroughly on the basis of the evidence on record. It is true that both the appellants have denied the recovery of [their pants and shirts and in their statements recorded under section 313 CrPC. [There is no evidence of any witness that the appellants had been seen wearing those pants and shirts ever before the incident except their statement alleged to have been made to Sub-Inspector at the time of the recovery of those clothes as evident from the recovery memos Exts. Ka-4 and Ka-5. Such statement made to police officer are inadmissible under section 26 of Evidence Act. Secondly the pant and shirt of Brij Lal are mentioned at Serial no. 12 and 13 in the report of Chemical Examiner Ext. Ka-38 and the blood stained articles of the deceased and blood stained earth are mentioned from Serial No. 1 to 11 in that report. Serologist report Ka-37 reveals that *0' the blood group of the stained articles of the deceased sustained at Serial Nos. 1 to 3 and 5 to 11 was found while the blood group 'B' was found on the blood stains of the pant shirt alleged to be of Brij Lal. Thus it is evident from the Serelogist report that the blood group of blood stained pant and shirt alleged to be of Brij Lal, is different from the blood group of the blood stains on the clothes of the deceased and blood stained earth. Thus it is evident from the Serelogist report that the blood group of blood stained pant and shirt alleged to be of Brij Lal, is different from the blood group of the blood stains on the clothes of the deceased and blood stained earth. We are of the view that this piece of evidence is not incriminating the appellants. So far as circumstance no. 6 that articles and money were recovered at the pointing out of the accused is concerned, the contention of the learned counsel for appellants is that the discovery of currency notes of Rs. 1600/- and 40 dollars wrapped In a rotten cloths at the pointing out of Brij Lal from a pit after digging out in his quarter and the currency notes of Rs. 900/- and 39 dollars in a purse of the deceased at the pointing out of Ram Autar from a pit after digging out from his quarter is nothing but farce, concocted and plantation by the police. It is also contended that the Investigating Officer has not recorded the information disclosed by each of the accused in the Memorandum of disclosure nor such memorandums of disclosure have been proved by the prosecution Hence this piece of evidence cannot be relied against any of the appellants. Smt. Sushama Kulshreshtha lady principal of the School returned from Delhi on 16-10-78 and she handed over a list of articles taken away by the assailants. She handed over the aforesaid articles then they were planted against the accused persons in support of this plantation. 13. WE thoroughly examined the submission made by the learned counsel for the appellants. It is true that Smt. Sushma Kulshreshtha returned from Delhi at 7.00 p.m. on 16-10-78 and she handed over a list of articles which were taken away by the assailants which is Ext. Ka-6 on record. Both the accused had been arrested and taken to the police before 12.30 p.m. and the Sub-Inspector had interrogated them. The accused had showed their willingness to hand over the articles of the deceased taken by them. Even then the recovery was not made on 16-10-78. In this regard the Investigating Officer stated that the accused were sent for medical examination, and police remand of the accused persons was sought for and granted till 21-10-78, for making the articles recovered, hence the recovery was effected on 17-10-78. Even then the recovery was not made on 16-10-78. In this regard the Investigating Officer stated that the accused were sent for medical examination, and police remand of the accused persons was sought for and granted till 21-10-78, for making the articles recovered, hence the recovery was effected on 17-10-78. The contention of the learned counsel for the appellants appears to have force that there was no difficulty for the investigating Officer to get the articles recovered on 16-10-78. The custody 24 hours of the accused persons from the time of their arrest was not expiring on 16-10-78. Second submission of the learned counsel for the appellants that the recovery of articles was plantation by the police also appears to have some force when the accused persons were brought on the police station where their personal search was taken and nothing was recovered from their possession. Even it is not mentioned in the G D. that any key of their quarters was recovered from their personal search. If they had no keys in (heir possession at the time of arrest and lodging at the police lock-up no question arises that the accused opened the lock of each of their quarter with the keys which they had and got the articles recovered. The probability is not excluded that the police had taken away the keys from the possession of the accused persons and they have got some property including the currency notes, purse and handkerchief from Smt. Sushma Kulshrestha and planted them, then got them showed as recovered at the pointing out of the accused persons. It is true that the recovery memo was signed and proved by public witness PW 5 Om Prakash Singh but in case some articles were taken from the lady Principal and were planted in the rooms of the accused persons and had shown to have been recovered at the pointing out of each of the accused persons. Evidence of such witness cannot be held worthy of implicit reliance. 14. IN this case Kall Ram Singh PW 14 is the Investigating officer, who got them recovered. Kali Ram Singh is also Investigating Officer of the present case. Thus the recovery officer and the I.O. are one and the same person. Had both those officers been different persons, their statements could have been examined thoroughly by the court. Now we examine the recovery of individual article. Kali Ram Singh is also Investigating Officer of the present case. Thus the recovery officer and the I.O. are one and the same person. Had both those officers been different persons, their statements could have been examined thoroughly by the court. Now we examine the recovery of individual article. So far as currency notes and dollars are concerned, there is no specific feature for the identification mentioned either in the list supplied by Smt. Sushma Kuishreshtha or in the recovery memo, hence the recovery of those currency notes and the dollars cannot be considered as proved against the appellants. So far the recovery of rotten handkerchief alleged to have been recovered at the pointing out of Brij Lal appellant and purse and Railway Pass recovered at the pointing out of Ram Autar appellant is concerned, it cannot be relied on against the appellants inasmuch at no specific features are mentioned in the list of articles looted, supplied by lady Principal and those two articles were indentified by her as the property of the deceased at the time of recovery itself. There is no evidence on record to corroborate the fact that the rotten handkerchief and the purse were the property of Ram Chandra Sharma deceased except Smt. Sushma Kuishreshtha as she had supplied the list of articles taken away by the assailants at 7.00 p.m. on 16-10-78 and she is the only witness who identified those articles at the spot when they were recovered at the pointing out of the appellants. The property could have been recovered even before 7.00 p.m.. on 16-10-78. No implicit (reliance can be placed upon the identification by Lady Principal at the time of recovery unless those articles would have been sealed on the spot put for identification before the Magistrate where she could have identified the same. The probability is not ruled out that Smt. Sushma Kulshreshta had supplied those articles to the Sub-Inspector and those articles were put in the quarters of the accused persons and later on- they were shown to have been recovered on their pointing out. 15. NOW recovery of Railway Pass remains for consideration. The recovery memo Ext, Ka-5 shows the details of the Railway Pass. No doubt it is a Monthly Season Ticket of Railway Issued in favour of the deceased for the period from 20th Aug., 78 to l9th Sep., 78. 15. NOW recovery of Railway Pass remains for consideration. The recovery memo Ext, Ka-5 shows the details of the Railway Pass. No doubt it is a Monthly Season Ticket of Railway Issued in favour of the deceased for the period from 20th Aug., 78 to l9th Sep., 78. Thus it was an outdated Season ticket as it was valid till 19-9-78 only. After that date the Railway Pass was useless. If it had been thrown away by the deceased as waste and was collected by any person bonafide or innocently, which was kept by him in his room the recovery of such outdated pass would not involve that person in the commission of the crime. Considering the evidence on record, we feel quite unsafe to rely on the recovery of rotten handkerchief, purse and outdated Railway Pass. 16. SO far as circumstance enumerated at Serial No. 7 above, we fully share with the view of the learned trial Judge that the accused persons had not made any extra judicial confession before PW 16 Ram Kripal Singh, who at one stage stated that due to drakness, he could not identify any of them. We have closely scrutinzed the prosecution evidence produced for finding out whether the circumstances are linked with each other and lead only to one conclusion of guilt of the appellants but we are constrained to hold that the prosecution has failed in bringing home guilt against the appellants beyond any shadow of doubt. Hence the verdict of guilt returned against the appellants and sentences awarded by the learned Sessions Judge are to be set aside and the appellants are to be acquitted of the charges levelled against them. 28. Accordingly, the appeal succeeds and is hereby allowed. The conviction and sentences as awarded by the trial Judge are set aside. The appellants are on bail and they need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed.