Devinder Gupta J. ( 1 ) BOTH these appeals arise out of the judgment dated 26. 5. 1988 passed by Shri P. S. Sharma, Additional Sessions Judge, Delhi convicting the appellants Jamail Singh and Jasvinder Singh for offences under Sections 302 and 392 of the Indian Penal Code and sentencing them to undergo life imprisonment under Section 302 Indian Penal Code and seven years R. I. under Section 392 Indian Penal Code. ( 2 ) THE facts in brief are that the appellants along with Ms. Daljitkaur@ Sweety were tried jointly for offences under Section 392 read with Section 34 and Section 302 read with Section 34 of the Indian Penal Code on the allegations that one Sudarshan Malhotra was staying with his wife Ms. Anju at House No. 3/115-A, Ramesh Nagar, New Delhi. They had three children who were getting education p53at Mussoorie. A couple of months prior to the date of occurrence Ms. Daljit Kaur was also brought by Sudarshan Malhotra to the house as his wife-mistress. As Ms. Daljit Kaur was not pulling on well with Ms. Anju, therefore, she wanted to get rid of Ms. Anju for which purpose she entered into a plan to cut short her life by putting up a show that some robbers had come and killed her and took away jewellery and other valuable articles from the house. The plan was so timed that most of the people were away from their houses. ( 3 ) THE prosecution s version has been that on 30th July, 1984 at about 11. 00 A. M. , the appellantcame to the house in a hired taxi after confirming from Ms. ,daljit Kaur on telephone that Ms. Anju was at house. Both of them could easily gain. access to the house since the two pet dogs had already been administered some pills and were lodged in bath-toilet. After gaining entry to the house, Ms. Anju was killed with a dagger and the jewellery which she was wearing was removed. Imported cassette player-deck, a V. C. R. and an attache case containing clothes was taken out and placed in the taxi which was till then parked outside the house. As a part of the plan accused Ms. After gaining entry to the house, Ms. Anju was killed with a dagger and the jewellery which she was wearing was removed. Imported cassette player-deck, a V. C. R. and an attache case containing clothes was taken out and placed in the taxi which was till then parked outside the house. As a part of the plan accused Ms. Daijit Kaur got herself tied up with clothes as if during the occurrence she was immobilised to put up a show that the other two accused had committed the act of murder and dacoity. In the meanwhile, Raj Kumar, brother of Sudarshan Malhotra along with his wife Ms. Sunaina, came and saw the appellants coming out of the house. After some talk between Raj Kumarand the appellants, the appellants came out of the house with the suit case and Raj Kumar on entering the house found Ms. Anju in a pool of blood. Ms. Daijit Kaur was found lying in another room wrapped up with cloth with her hands and feettied and mouth gagged. Raj Kumar and his wife shouted for help. In the meanwhile both the appellants, after putting the suit case in the taxi, fled away. Ranjit Singh, the taxi driver. kept standing outside the house by the side of Taxi and all the goods which were sought to be taken away were found to be lying in the taxi. ( 4 ) IT is the prosecution case that information was received by the police from one Suresh Malhotra from Telephone No. 539972 about stabbing on which S. I. Dal Chand was sent to the spot, who on investigation sent. another information to the police. S. I. Manohar Lal was then deputed to conduct investigation. On arriving at the scene of occurrence, Ranjit Singh, Taxi Driver, was found standing outside the house by the side of the taxi. Attache case and other goods were found lying in the taxi. On enquiry Ranji-t Singh informed S. I. Manohar Lal that his taxi had been hired by the appellants from Jeewan Nagar Taxi Stand on the pretext that they would be coming back in a few moments. After the articles had been put in the taxi, on arrival of Raj Kumar and his wife the appellants had some conversation with them. On enquiry Ranji-t Singh informed S. I. Manohar Lal that his taxi had been hired by the appellants from Jeewan Nagar Taxi Stand on the pretext that they would be coming back in a few moments. After the articles had been put in the taxi, on arrival of Raj Kumar and his wife the appellants had some conversation with them. When Raj Kumar went inside the housc he felt suspicious and refused to take away the appellants who then made their escape through a bye-lane. Taking stock of the position at the spot, SI Manohar Lal recorded the statement Ext. PW12/a of Raj Kumar which was sent for registration of a formal F. I. R. Ex. Public Witness 8/d of the commission of offence. Thereafter the police prepared inquest report and sent the dead body for post-mortem examination. ( 5 ) THE appellant Jarnail Singh was arrested on 4. 8. 1984 at Bhatinda. Ms. Daijit Kaur was arrested on 5. 8. 19u4 and Jasvinder Singh was arrested at Hardwar on 2. 12. 1984. ( 6 ) ONE gold Kara of the deceased was recovered from the shop of Natha Singh, Goldsmith of Dariba Kalan on the basis of a disclosure statement alleged to have been made by the appellant Jarnail Singh. One chain, a pair of small earrings and a pair of ear pins were recovered from the left side pocket of the pant worn by Jarnail Singh appellant at the time of his arrest. Dagger, Ext. P-8, was recovered at the instance of the appellant Jasvinder Singh from his house at Jawalapur, Hardwar on 10. 2. 1985. Initially challan was presented against Jarnail Singh and Ms. Daijit Kaur but later on after arrest of Jasvinder Singh supplementary challan was filed against him also. ( 7 ) THE accused were charged under Section 392 read with Section 34 for committing robbery of ornaments, namely, gold chain, a pair of gold ear-rings, a pair of golden ear-tops, a golden Kara, V. C. R. , Deck make Sony and an attache case containing cloths. They were also charged for anoffence under Section 302 read with Section 34 of the Indian Penal Code for having committed the murder of Ms. Anju in furtherance of common intention. ( 8 ) THE trial court acquitted Ms. They were also charged for anoffence under Section 302 read with Section 34 of the Indian Penal Code for having committed the murder of Ms. Anju in furtherance of common intention. ( 8 ) THE trial court acquitted Ms. Daijit Kaur finding the evidence on record to be deficient, discrepant and unreliable as regards her complicity in the crime. As regards the appellants, it was held that the evidence was sufficient to record conviction for commission of an offence under Sections 302 and 392 of the Indian Penal Code. It is this judgment of conviction and sentence which is under challenge in this appeal. ( 9 ) WE have heard the learned counsel for the appellants and the respondent State. ( 10 ) NO appeal has been preferred by the State against the judgment of acquittal of Ms. Daijit Kaur. ( 11 ) IT has vehemently been contended on behalf of the appellants that there is no direct evidence in the case. The conviction has been based upon circumstantial evidence. Evidence on record makes it highly doubtful that the appellants are the persons involved in the commission of the crime. Identity of Jarnail Singh and Jasvinder Singh, appellants, has not been established beyond reasonable doubt. Investigation in the case has been faulty and defective. The charge which was framed against the appellant along with Ms. Daljit Kaur was for an offence under Section 302 read with Section 34 of the Indian Penal Code and Sections 392 read with Section 34 of the Indian Penal Code. Both the offences were alleged to have been committedin furtherance of common intention and no other independent charge was framed and since on the basis of the same evidence Ms. Daljit Kaur had been acquitted, the conviction and sentence of the appellants cannot be sustained on the same evidence. ( 12 ) LEARNED counsel for the respondent has tried to. support the judgment on the basis of the reasons which have been recorded by the trial court. ( 13 ) WE have been taken through the entire oral and documentary evidence. The discrepancies pointed out by learned counsel for the appellants will benoticed by us shortly while discussing the arguments and considering the circumstances taken note of by the learned trial Judge. ( 13 ) WE have been taken through the entire oral and documentary evidence. The discrepancies pointed out by learned counsel for the appellants will benoticed by us shortly while discussing the arguments and considering the circumstances taken note of by the learned trial Judge. ( 14 ) THE first circumstance noticed by the learned trial judge is the presence of the appellants on the spot as per the version of Public Witness 12 Raj Kumar. According to the prosecution version, the appellants had come in a taxi driven by Ranjit Singh, Driver. Ranjit Singh, Driver, has riot been examined in the case on the pretext that he was not available and had left for Germany. The other witness, who is stated to have seen the appellants coming out of the house, is Raj Kumar, brother of Sudarshan Malhotra. ( 15 ) RAJ Kumar was examined as Public Witness 12. According to his statement, he along with his wife came to the house after consulting a Doctor at Moti Nagar. They arrived at about II - 11,15 A. M. A taxi was found standing outside. Both of them went inside the house and saw the appellants there. This witness recognised both the appellants in court. On enquiry by the appellants, the witness is stated to have informed that he was the brother of Sudarshan Malhotra and told that he had come to meet his brother. According to him, Jarnai lsingh was holding the attache case of green colour in his hands and Jasvinder Singh s hands were wrapped in cloth. Both of them came out of the house. On entering the house, he saw Anju lyingon acot with cut mark on her neck. Ms. Daljit Kaur was found lying wrapped in cloths in another room. Attache case,v. C. R. , Deck for playing tape and a sickle was found by them in the taxi when they came out and saw the accused person running towards a street. According to him there were two dogs in the house - one Alsatian dog and the other small dog-but both of them were closed in bath room and in an almirah. According to him Jasvinder Singh was wearing a turban when he saw him coming out of the house but was not in a position to give specific particulars of the cloth wom by both the appellants. According to him Jasvinder Singh was wearing a turban when he saw him coming out of the house but was not in a position to give specific particulars of the cloth wom by both the appellants. Prior to the date of occurrence he had not seen the appellants but was in a position to identify both of them in court though when appellant Jasvinder Singh appeared in court he was not having a beard which had been removed by him. This witness could not give any other identification mark on the face of the appellants to enable him to recognise these two appellants to be the same person whom he saw coming out of the house. ( 16 ) NO other witness was examined by the prosecution who might have seen the appellants coming out of the house on the date of occurrence. On the basis of the statement of Raj Kumar alone, the trial Judge concluded that there is no doubt about the presence of the appellants on the spot and of their committing the crime. This circumstance was noticed by the trial Judge to be one of the circumstances in order to hold both of them guilty of the offence. It was observed that the appellant Jasvinder Singh had refused to join identification parade without any justifiable reasons. The prosecution made no effort to hold any identification parade insofar as Jamail Singh is concerned. Effort was made to hold test identfication parade only as regards Jasvinder Singh. The ground for refusal by Jasvinder Singh was that he had already been shown to some persons while he was in Tis Hazari lock up. He was arrested on 2. 12. 1984 and test identification parade was scheduled to be held in Tihar jail on 2. 2. 1985. ( 17 ) PUBLIC Witness 30 Manohar Lal, Investigation Officer denied the suggestion that this accused had been shown to the witness while he was in Tis Hazari lock up. The appellants Relied on upon document Ext. D-l (it is also proved on record as Ext. Public Witness 10/b) which is p73 an application moved on 7. 1. 1985 by the Investigation Officer addressed to the Metropolitan Magistrate, Tis Hazari praying for an adjournment of the date for holding test identification parade. It was prayed that 7. 1. The appellants Relied on upon document Ext. D-l (it is also proved on record as Ext. Public Witness 10/b) which is p73 an application moved on 7. 1. 1985 by the Investigation Officer addressed to the Metropolitan Magistrate, Tis Hazari praying for an adjournment of the date for holding test identification parade. It was prayed that 7. 1. 1985 the date fixed for test identification parade of Jasvinder Singh be postponed since witnesses had gone to Punjab for two weeks since 2. 1. 1985. ( 18 ) THERE is sufficient force in the submission made by the learned counselor the appellants that Jasvinder Singh was justified in refusing to get subjected to the test identification parade since he had already been shown to the witness when he was in Tis Hazari lock up. Public Witness 12 admits having seen Jasvinder Singh once at Police Station after the date of occurrence when he had become clean shaven. ( 19 ) AFTER the occurrence when he had only a glance at Jasvinder Singh, it is astonishing that Public Witness 12 was in a position to identify the accused in Court after a lapse of considerable period without any specific mark of identification on the body more specially when according to him turban was not worn by him and he had become clean shaven. Identity of Jasvinder Singh could not have been possible unless the accused had been shown to him after he became clean shaven. When he admits that he had seen Jasvinder Singh once in police station, no importance can be given to this fact that he had after the date of occurrence identified the accused in court without distinctive mark of identification. Even in the case of the other appellant Jarnail,singh, as noticed above, no separate test identification parade was conducted. Only person produced, who, according to the prosecution, had seen the occurrence at the house, is Public Witness 12. In his statement, he has not given any specific or distinctive mark of identification. Prosecution tried to build up a case that one of the arms of this accused was missing and from which he was in a position to recognize him but unfortunately in his statement as PW 12 in Court has no where stated so. This is so recorded in his statement purported to be under Section 154 of the Code of Criminal Procedure, namely, Ext. This is so recorded in his statement purported to be under Section 154 of the Code of Criminal Procedure, namely, Ext. PW 12/a. This statement cannot be read in evidence in order to corroborate the witness since the same is hit by provisions of Section 162 of the Code of Criminal Procedure. ( 20 ) IT was on telephonic information that report No. l9/a (Ext. PW 8/a)was recorded on 30. 7. 1984 at 11. 39 A. M. Report says that one Suresh Malhotra from Telephone No-539972 had informed the PCR that a women had been stabbed with knife in House No. 3/115, Ramesh Nagar. A copy of the report was sent to S. I. Dal Chand through Constable Gilbert No. 897/w for taking appropriate action. At 11. 57 A. M. on 30. 7. 1984, Report No. 21a (Ext. Public Witness 8/b) was recorded on the telephonic information of S. I. Dal Chand to the effect that while investigating the report No. l9 A, he noticed that a woman has been murdered at House No. 3/115 -A,rameshnagar. He was keeping a guard on the spot and prayed for sending some higher officers. This intimation by S. I. Dal Chand on telephone in terms of Section 154 of the Code of Criminal Procedure has to be taken as F. I. R. of commission of a cognizable offence and not the statement of Raj Kumar, which was subsequently recorded by Manoharlal Sharma, who visited the spot on being deputed in pursuance to the recording of report, Ext. PW 8/b. Admittedly, Ext. PW 8/a is a signed statement and the same is hit by Section 162 of Code of Criminal Procedure and cannot be used for corroborating the prosecution s version. ( 21 ) PUBLIC Witness 12 Raj Kumar stated that there was no peculiar mark of identification due to which he was in a position to identify Jarnail Singh after having a glimpse on the date of occurrence. In view of this it has to be held that the trial judge was not right in assuming the presence of appellants on the spot. ( 22 ) PUBLIC Witness 30 Inspector Manohar Lal Sharma made a statement that the taxi driver had left for Germany. In view of this it has to be held that the trial judge was not right in assuming the presence of appellants on the spot. ( 22 ) PUBLIC Witness 30 Inspector Manohar Lal Sharma made a statement that the taxi driver had left for Germany. Seizure memo of taking taxi in possession records the permanent as well as temporary address of the taxi driver but no effort was made to get the taxi driver served even on the pennanent address. Mere statement of the Investigating Officer that the witness has left for Germany without stating further whether he had permanently shifted to Germany or was likely to come back shortly was not enough. No serious effort was made even to associate the other persons of the public who were reported to have gathered immediately on hearing the call given by Raj Kumar after he had noticed the two appellants fleeing away from the spot. ( 23 ) THERE is another circumstances which creates the prosecution s version doubtful as regards the presence of the appellants on the spot, namely, absence of any finger prints on any of the articles found. It is the case of the prosecution that the appellant Jamail Singh was carrying the attache case of green colour, which later on was found to be kept in the taxi and was also recovered by the police. Incase Jamail Singh was carrying the attache case by holding it from handle in his hand, there is more reason as to why effort was not made to lift the. finger prints from the handle of the attache case so as to establish p73 the identity of Jamail Singh. ( 24 ) THE other circumstance taken on record by the learned trial court is the recovery of dagger, Ext. Public Witness 8 at the behest of the appellant Jasvinder Singh by virtue of his disclosure statement. Jasvinder Singh was arrested from Hardwar on 2. 12. 1984. His first disclosure statement, Ext. Public Witness 27/a was recorded on 7. 2. 1985 but it did not lead to any recovery. Second disclosure statement, Ext. PW 26/a is stated to have been made on 10. 2. 1985 leading to the recovery of dagger and since in the opinion of Public Witness I Dr. 12. 1984. His first disclosure statement, Ext. Public Witness 27/a was recorded on 7. 2. 1985 but it did not lead to any recovery. Second disclosure statement, Ext. PW 26/a is stated to have been made on 10. 2. 1985 leading to the recovery of dagger and since in the opinion of Public Witness I Dr. L. T. Ramani injury No. 3 could be caused with the dagger, the court concluded that it must be the dagger used in the commission of crime and since recovery had been effected in pursuance to the disclosure statement of the appellant Jasvinder Singh, his presence on the spot stands established. ( 25 ) OUR attention has been drawn to the statement ofpw26s. I. Rambir Singh of Police Station Hardwar (Kotwali), who is one of the witnesses of the disclosure statement, Ext. Public Witness 26/a. On going through the statement, it cannot be said that the disclosure statement was voluntarily in nature. In cross-examination, he had admitted that the police had threatened Jasvinder Singh before his disclosure was recorded. Otherwise also it has to be held non-voluntary in the circumstances of the case, namely, the earlier statement dated 7. 2. 1982 (Ext. Public Witness 27/a) which led to no recovery. Recovery is alleged to have been effected and dagger seized in the presence of one Shambhu Dayal, who has not been examined. No blood stains were found on the dagger. Public Witness 12 Raj Kumar no where stated that when the appellants left the place of occurrence or when he saw them fleeing, he had seen any daggerin the hands of Jamail Singh or Jasvindersingh. He had only stated that Jasvinder Singh s hand was wrapped in cloth. No dagger was seen by him. In case no dagger was seen by Public Witness 12 in the hands of Jasvinder Singh or Jamail Singh, it would be highly improbable that dagger alleged to have been recovered at the instance of Jasvinder Singh was used in the commission of offence. ( 26 ) THE other circumstances noticed are- recovery of golden Kara by virtue of the seizure memo, Ext. PW17/a. The prosecution s case is that Kara had been sold by Jarnail Singh to one goldsmith Natha Singh, Public Witness 17. Kara, Ext. Public Witness 9, is stated to have been recovered along with a chit, Ext. ( 26 ) THE other circumstances noticed are- recovery of golden Kara by virtue of the seizure memo, Ext. PW17/a. The prosecution s case is that Kara had been sold by Jarnail Singh to one goldsmith Natha Singh, Public Witness 17. Kara, Ext. Public Witness 9, is stated to have been recovered along with a chit, Ext. Public Witness 30/g stated to be in the hand of the appellant Jarnail Singh. Kara and chit stated to be co-related in order to fix the complicity of Jarnail Singh with the commission of crime. Writing also is stated to have been taken possession from the custody of Natha Singh. But no question was put to him as regards the writing, Ext. Public Witness 30/g. In case the golden Kara was sold to the goldsmith, it was necessary to have made an entry in any of the books or registers maintained by him. According to him, he had a licence to prepare ornaments and did not have any licence to purchase the same. Incase any writing was given by Jarnail Singh to him or in case he had obtained a writing from Jarnail Singh, it was necessary for the prosecution to have at least put a question to this witness that Ext. Public Witness 30/g was the writing given to him by Jarnail Singh. But no such question was put to him. Even the other witness, Public Witness 20 Jit Singh, did not support the prosecution. He has stated that Ext. PW 30/g was the writing recovered by the police along with Kara from the shop of Public Witness 17. His version is that a writing was made about the purchase of Kara by Natha Singh. It was on a plain paper and he (Jit Singh) had written that paper. It is nobody case that document, Ext. Public Witness 30/g was written by Jit Singh. ( 27 ) THUS, recovery of writing, Ext. Public Witness 30/g is highly doubtful in nature. In addition to this a gold chain with two ear-rings and two ear-tops are stated to have been recovered from the person of Jarnail Singh at the time of his arrest. Public Witness 30/g was written by Jit Singh. ( 27 ) THUS, recovery of writing, Ext. Public Witness 30/g is highly doubtful in nature. In addition to this a gold chain with two ear-rings and two ear-tops are stated to have been recovered from the person of Jarnail Singh at the time of his arrest. SI Vijay Kumar, Security, Police Lines, Public Witness 21 was deputed to arrest Jarnail Singh who had actually not affected the arrest but it was Manohar Lal Sharma, Public Witness 30 who had made arrest and according to the memo prepared at the time of arrest, Ext. Public Witness 20/a, these ornaments were found in the right side pocket of the pant which was worn by Jarnail Singh. But both SI Vijay Kumar and Manohar Lal in their statements did not state so but deposed that the accused produced these ornaments voluntarily. ( 28 ) THE aforementioned circumstances thus, as noticed by the trial judge, led him to the conclusion that the appellants were concerned with the commission of crime. These circumstances, as noticed by us, are highly doubtful in nature. Otherwise also we have noticed that identity of the accused and their presence on the spot has not been established. ( 29 ) IT is also interesting to note that the articles which were alleged to have been tried to be removed while committing the offence of robbery were V. C. R. , Deck make Sony, Cassette Player, attache case containing clothes, which according to the prosecution and Public Witness 12 were kept in taxi parked outside the house. The first person alleged to have reached the spot is Public Witness 12, who stated that when he came out and saw the accused making their way to the street, these things were found lying in the taxi and according to him Ms. Daljit Kaur was found lying in another room tied or wrapped in clothes. SI Dal Chand reached the spot immediately on receipt of the information, Ext. Public Witness 8/a before 11. 57 A. M. According to him, though he saw taxi parked outside the house but no articles were found by him in the taxi and when he entered the house he saw Ms. Daljit Kaur sittingin the room. She was not tied up or wrapped in clothes. No other witness has been examined in support of the claim ofpw12thatms. 57 A. M. According to him, though he saw taxi parked outside the house but no articles were found by him in the taxi and when he entered the house he saw Ms. Daljit Kaur sittingin the room. She was not tied up or wrapped in clothes. No other witness has been examined in support of the claim ofpw12thatms. Daljit Kaurwas tied or wrapped in clothes. Absence of articles in taxi as per the version of SI Dal Chand leads to an inference that keeping of these articles in taxi is a concocted version which must have been improvised with aview to implicate the accused appellants. In case these articles were lying in taxi there is no reason as to why SI Dal Chand did not notice the same. During the trial of the case, these articles were also not produced and no effort was made to produce the same. ( 30 ) THERE is another circumstances which leads to hold that the accused appellants are entitled for acquittal. Appellants along with Ms. Daijit Kaur were charged with offence undersection 392 read with Section 34 and Section 302 read with Section 34 of the Indian Penal Code. Both these charges were based on the common intention of. the three accused. The findings of the trial judge led to the acquittal of Ms. Daljit Kaur. There being no other independent charge insofar as the present appellants are concerned and there being no other evidence that they independent of Ms. Daljit Kaur committed the aforementioned offence, in view of the decision in State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru ( AIR 1994 SC 772 ) the appellants are entitled for acquittal. ( 31 ) IN the result, we have no option except to hold that the charges as framed against the appellants do not stand established and the judgment of conviction and sentence deserves to be set aside. Resultantly, the appeals are allowed and the impugned judgment of conviction and sentence is set aside. The appellants are directed to be released forthwith if not required in any other case. Both the appeals arc disposed of.