JUDGMENT 1. - This appeal has been filed against the judgment dated 21.11.1992, passed by the Sessions Judge, Sikar in Sessions Case No. 61 of 1989, whereby he convicted the appellant for the offences Under Sections 302, 457 & 380 Indian Penal Code and sentenced as under : Section 302 Indian Penal Code: Imprisonment for life and fine of Rs. 500/In default of payment of fine to suffer three month's S.I. Section 457 Indian Penal Code: Five years' R.I. and a fine of Rs. 500/-. In default of payment of fine to further suffer 3 months' S.I. Section 380 Indian Penal Code: Four years' R.I. and a fine of Rs. 500/-. In default of payment of fine to further suffer 3 months' S.I. All the sentences have been ordered to run concurrently. 2. The prosecution case is woven like this : On 9.3.1989, at 6.30 p.m. a memorandum sent by the Station Master Railway Station Goriyon was received at Police Station Ranoli, District Sikar, informing about an unknown dead-body lying near the railway track between KM 215/5 and 215/6. Dead body had been handed over to the G.R.P. Staff. On receipt of this information the Station House Officer, Police Station Ranoli initiated proceedings Under Section 174 Criminal Procedure Code and registered sudden death case No.1 of 1989 Police Station Ranoli. His dead-body was then shifted to Government Dispensary Palsana where one Om Prakash son of Kistoor Chand at 12.50 p.m. submitted written report (Ex. P/1) before the Station House Officer, Police Station Ranoli Camp Palsana. It was stated in the report that in the preceding night the informant and his cousin Bajranglal deceased had returned from Delhi. After alighting from the Bus at the Bus Stand, the informant went to his house and Bajranglal went to the shop where he used to sleep. In the morning Bajranglal was not found in the room above the shop, and the room was locked from outside. At about 11.00 a.m. information arrived that a dead-body was lying near railway track and on receiving information the informant Om Prakash went there and found Bajrang lying dead on the road. 3. The Station House Officer, Police Station Ranoli forwarded the report to the concerned Police Station - Khatu where the first information report No. 35/89 Under Section 302 Indian Penal Code was registered on the same day at 5.15 p.m. Yet another report Ex. 3. The Station House Officer, Police Station Ranoli forwarded the report to the concerned Police Station - Khatu where the first information report No. 35/89 Under Section 302 Indian Penal Code was registered on the same day at 5.15 p.m. Yet another report Ex. P/2 was submitted by the informant Om Prakash to the Station House Officer, Police Station Ranoli at 6.00 p.m. on 9.3.1989. It was stated therein that on opening the lock of the room the clothes of Bajrang Lal were seen scattered near his Attachee. Further it was also stated that 22 cigarette cartons out of the 31 lying in the room were found missing. The dead-body was subjected to post-mortem-examination and site was inspected. The statements of the witnesses were recorded. The inquest report was prepared. Blood stained earth as well as blood stained clothes of the deceased were taken into custody. The appellant was arrested and on the basis of information given by him two knives and his clothes were recovered. On completion of investigation challan against the appellant for offences Under Sections 302, 201 & 394 Indian Penal Code was filed. The case was committed before the Sessions Judge, Sikar who framed charges Under Sections 302, 201, 380 & 457 Indian Penal Code. The appellant denied the charges and claimed trial. The prosecution examined 29 witnesses in support of its case. The statement of the appellant Under section 313 Criminal Procedure Code was recorded. The appellant denied the allegations and claimed innocence. No evidence in defend was lead. After hearing the arguments the Sessions Judge convicted and sentenced the appellant in the manner stated herein above. 4. We have heard the arguments of the learned counsel at length and perused the entire record of the case. 5. The learned counsel Mr. Bajwa, appearing on behalf of the appellant has argued that the trial Court has drawn its conclusion on the basis of surmises and conjectures. There is total lack of cogent evidence to connect the appellant with the impugned charges. The prosecution could not produce eye-witness so as to connect the appellant with the crime and the conviction of the appellant is based only on the circumstantial evidence. None of the circumstances relied upon individually or collectively point out the involvement of the appellant in the commission of the murder of Bajranglal. The prosecution could not produce eye-witness so as to connect the appellant with the crime and the conviction of the appellant is based only on the circumstantial evidence. None of the circumstances relied upon individually or collectively point out the involvement of the appellant in the commission of the murder of Bajranglal. The trial Court acted upon stray pieces of evidence in the name of circumstantial evidence and these stray pieces do not provide a complete chain of events which in the eye of law should be acted upon to hold the appellant guilty for the murder of Bajranglal. The learned counsel further argued that the main and foremost link in the chain of circumstantial evidence namely evidence of PW 16 Dharamveer Singh has been completely misconstrued by the trial Court. Dharamveer Singh is the person who drove the Metador from Delhi to Palsana and back to Delhi, and it was this Metador which the appellant had hired from Delhi in which he has travelled all along before and after commission of various offences in question. Significantly, the witness Dharamveer Singh has refused to identify the appellant as the person who had hired the Metador or who had travelled in it. Consequently, the main plank upon which the entire edifice of prosecution stands was withdrawn by this witness. It was the most material link in the chain of circumstances. There is thus total lack of evidence to infer that during the intervening night of 8/9.3.1989, the appellant had visited Palsana or that the deceased was last seen in the company of the appellant. 6. The learned counsel Mr. Bajwa has further substantiated his arguments by making submission that the trial Court has erred in relying upon the alleged recoveries said to have been effected at the instance of the appellant. The recovery of blood stained clothes of appellant was fake. The clothes have been planted and similarly the recoveries of knives are also concocted. The seizure of these articles was highly doubtful they were never kept in safe custody. The possibility of seals having been tampered cannot be ruled out as such no reliance of such recoveries can be placed. Further unless the blood group of the appellant was known the finding of same blood group on the clothes of the deceased and on the bushirt of the appellant is of no consequence. The possibility of seals having been tampered cannot be ruled out as such no reliance of such recoveries can be placed. Further unless the blood group of the appellant was known the finding of same blood group on the clothes of the deceased and on the bushirt of the appellant is of no consequence. The prosecution has miserably failed to bring out any proximate cause or genesis of the occurrence motive of alleged murder of Bajranglal has also not been spelt. The story set out by the prosecution sound highly unnatural improbable. The appellant visited the spot where theft was to be committed during the previous night intervening 7/8.3.1989. Admittedly the room was locked during that night as Bajranglal was away to Delhi. Decks were thus clear and if the motive was for the offence to commit the theft the best opportunity available to the appellant was during the night intervening 7/8.3.1989. The learned counsel for the appellant further argued that the trial Court has adopted perverse reasoning to hold that when witness Dharamveer could identify photographs of deceased Bajranglal to whom he had seen only for a little while during the night how this witness could failed to identify the appellant in whose company the witness had stayed for more than two days. Instead of inferring that the witness had wilfully told lie in refusing to identify the appellant in Court the normal inference should have been that if the witness failed to identify a person with whom he had lived for two days how could the witness identify correctly the identity from photographs of a person whom the witness had seen for only once for a little while and that during the night. There is total lack of evidence to presume that the appellant had committed the offence of house breaking by night for committing theft. On the basis of recovery of cartons alone and that too from the custody of some shop-keeper in Delhi, presumption of house breaking by night cannot be drawn against the appellant. Cigarette cartons of the make `Four Square' is a commodity available throughout the country. There is no particular mark of identification to distinguish the cartons from one another. The recovery of cartons from a shop in Delhi cannot be connected with the impugned theft. 7. Cigarette cartons of the make `Four Square' is a commodity available throughout the country. There is no particular mark of identification to distinguish the cartons from one another. The recovery of cartons from a shop in Delhi cannot be connected with the impugned theft. 7. The learned Public Prosecutor has supported the findings of the trial Court and asserted that the prosecution has proved by clear and cogent evidence the guilt of the appellant. 8. The important question for determination in this case is whether the appellant could be held guilty for the aforesaid offence. There is no direct evidence in the sense of an eye witness account, to connect the appellant with the crime. The prosecution, however, relies on the following circumstances in order to establish the charges framed against the appellant: (1) Appellant used to visit the room of the deceased and appellant knew that valuable cigarette cartons were kept in the said room. (2) When Radha Kishan (PW 2), opened the room he found that out of 31 cigarette cartons, 22 were missing. The value of missing cartons was Rs. 86,000/-. (3) The said 22 cigarette cartons were recovered from the shop belonging to firm Nanak Chand Bulaki Das situated in Naya Bas Market, Delhi, at the instance of the appellant through Ex. P/15. (4) Two blood stained knives were recovered at the instance of the appellant through Ex. P/22. (5) Blood stained clothes duly washed belonging to the appellant were recovered at the instance of the appellant through Ex. P/24. (6) Appellant hired Metador No. DDV 331 from Harish Travels of Delhi, Dharamveer Singh (PW 16), was the driver of the said Metador. This driver and appellant came to village Palsana at 1.00 a.m. in the intervening night of 7.3.1989 and 8.3.1989. They went to Sikar and stayed in Dharam shala. At about 9.30 p.m. they left Sikar for Village Palsana. In the midnight the appellant asked the driver to stop Metador and he went out. After, some time he came with a person aged 22 years. Both of them entered into Metador. The driver started Metador. After three kilometers appellant asked driver to stop Metador. Appellant and another person got down of the Metador and went towards dark area. After about 45 minutes the appellant returned alone. This driver identified photograph Ex. After, some time he came with a person aged 22 years. Both of them entered into Metador. The driver started Metador. After three kilometers appellant asked driver to stop Metador. Appellant and another person got down of the Metador and went towards dark area. After about 45 minutes the appellant returned alone. This driver identified photograph Ex. P/6 of deceased Bajranga and stated that he was the same person who accompanied appellant. (7) The appellant sustained injury on his index finger of right hand. He got it dressed on 9.3.1989 from Compounder of Revari Hospital. (8) The appellant sold 24 cigarette cartons to Prabhat Kumar of Delhi in consideration of Rs. 86,000/-, which were seized by police through Ex. P/15. (9) Dead-body of deceased Bajranga was found on 9.3.1989 at about 6.00 a.m. near the Railway track. 9. Since this is a case of circumstantial evidence, it is necessary to find whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as `clear and cogent' and secondly, whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the appellant is guilty of the offences of which he is charged. In other words, the circumstances are to be of such a nature as to be consistent with the sole hypothesis that the accused in guilty of the crime imposed on him. 10. There is a credible evidence in support of the first and second circumstance out of nine circumstances enumerated above. The evidence of Om Prakash (PW 1), Kistoor Chand (PW 2) and Radha Kishan (PW 3) proves that appellant used to visit the room of the deceased and he knew that valuable cigarette cartons were kept there. There is nothing to disbelieve the statement of Radha Kishan (PW 3) that on the relevant day when the dead body of Bajranga was found, 22 cigarette cartons were missing from his room. 11. As regards the third circumstance, the evidence of Ravindra Kumar (PW 8) who is a cigarette dealer, shows that he kept 31 cartons of cigarettes bearing marks PLSN/44, PLSN/17, PLSN/21, PLSN/23, PLSN/50, etc. in the room of the deceased and out of these 22 cartons were recovered at the instance of the appellant. This witness has produced bilties of cigarette cartons in the trial Court which were exhibited as Ex. P/16 to Ex. in the room of the deceased and out of these 22 cartons were recovered at the instance of the appellant. This witness has produced bilties of cigarette cartons in the trial Court which were exhibited as Ex. P/16 to Ex. P/19 and he has identified cigarette cartons Articles 1 to 22 in the trial Court. With regard to cigarette cartons Radhakishan (PW 3) has stated that there were PLSN marks over the said cartons. Kailash Chand (PW 4) has stated that in his presence the cigarette cartons bearing marks PLSN 50, 56, 44, 23, 17 & 21, were carried to the room of the deceased by the labourers. There is ample evidence with regard to possession of stolen property i.e. 22 cigarette cartons and the prosecution is successful in proving this circumstance that cigarette cartons were stolen property and they were recovered at the instance of the appellant. 12. With regard to fourth circumstance, Sajan Singh (PW 14) has stated that the police recovered two blood stained knives at the instance of the appellant and Ex. P/21 recovery memo was signed by him. Site plan Ex. P/23 of the place of recovery was prepared and witness signed over it. The Investigating Officer Rafiq Ahmed (PW 27) has also corroborated the statement of Sajan Singh (PW 14). 13. As regards the fifth circumstance, the prosecution has adduced evidence regarding recovery of blood stained clothes of appellant at his instance. In this connection Mohan Lal (PW 15) has been examined who has stated that at the instance of the appellant Police recovered his clothes duly washed from the attachee of red colour belonging to the appellant, seizure memo of the clothes Ex. P/24 was prepared and witness Mohanlal signed it as a witness. Similarly site plan of the place of recovery was prepared as Ex. P/25 and witness Mohan Lal is signatory of this memo also. The statement of Mohan Lal (PW 17) has been corroborated by the Investigating Officer Rafiq Ahmed (PW 27). 14. As regards sixth circumstance witness Dharamveer Singh (PW 16), who is a driver of Metador DDV 331 has stated that the appellant came to Delhi and hired the said Metador after depositing Rs. 600 as advance with the owner of the Metador. 14. As regards sixth circumstance witness Dharamveer Singh (PW 16), who is a driver of Metador DDV 331 has stated that the appellant came to Delhi and hired the said Metador after depositing Rs. 600 as advance with the owner of the Metador. This driver Dharamveer Singh and Vinod Kumar appellant came to Jaipur in the said Metador and from Jaipur then went to village Palsana and in the intervening night of 7.3.1989 and 8.3.1989 they reached Sikar and remained there. At about 9.30 p.m. they left Sikar for Palsana. In the midnight the appellant left this driver in the Metador and went out. After 15-20 minutes he came back with the person aged 22 years he was wearing red shirt and a shawl. Both of them sat in the Metador. When they crossed 3 kilometers the appellant got the Metador stopped and they got down from it and went towards dark area. After about 45 minutes the appellant returned alone. On being asked by the driver about the stranger the appellant informed mujhe use paise paise ginanne the wo main gin aya (I had to pay him money which I paid). Thereafter appellant loaded 20-25 cigarette cartons in the Metador. 15. Witness Dharamveer Singh (PW 16) identified photographs of the deceased but he could not identify the appellant in the Court. Another witness Nathuram (PW 11) has stated that on 9.3.1989 around 3.00 a.m. he had seen, a Metador bearing No. DDV 331 near village Akhepura. Witness Banwarilal PW 17 has stated that he had seen a Metador bearing DDV 331 in front of his office in village Palsana on 9.3.1989 around 5.00 a.m. and he had also seen a person carrying a packet near the Metador. 16. As regards 7th circumstance, Sumer Singh (PW 18) has stated that he was posted as compounder in Dr. Kapur's Hospital Rewadi. On 9.3.1989 around 9.30 a.m. a person came to him in a Metador and given his name as Vinod Agrawal. He had sustained tooth-bite injury on his index finger. He requested Sumer Singh to dress his finger which Sumer Singh did. After 25 days he again came with the police and Sumer Singh identified him. 17. With regard to eighth circumstance we have already discussed that the appellant sold 24 cigarette cartons to Prabhat Kumar of Delhi in consideration of Rs. He requested Sumer Singh to dress his finger which Sumer Singh did. After 25 days he again came with the police and Sumer Singh identified him. 17. With regard to eighth circumstance we have already discussed that the appellant sold 24 cigarette cartons to Prabhat Kumar of Delhi in consideration of Rs. 86,000/- and the said cartons were seized by the police at the instance of the appellant. 18. As regards, ninth and last circumstance, the prosecution could only prove that the dead-body of deceased Bajranga was found on 9.3.1989 at about 6.00 a.m. near the railway track. 19. We have already discussed that evidence has been led by the prosecution to show that the cigarette cartons belonging to the deceased Bajranga were recovered on a disclosure statement of the appellant recorded Under section 27 of the Evidence Act. The evidence of recovery is reliable and trustworthy. The trial Court has rightly believed the recovery evidence. Nothing has been brought to our notice to throw any doubt on the same either. Neither the ownership of the cigarette cartons nor the testimony of the panch witnesses has been doubted. We consequently, accept that recovery of cigarette cartons referred to above were made at the instance of the appellant and those articles belonged to the deceased. Thus, the only circumstance which can be said to have been established against the appellant is the recovery of cigarette cartons belonging to the deceased. That alone, in our opinion is no sufficient to connect the appellant with the crime of murder of deceased Bajranga. 20. We have found the following inherent infirmities in the prosecution case:- (i) Place of occurrence where the murder of deceased Bajranga was committed could not be established. The SHO Rafiq Ahmed (PW 27) had drawn site plan (Ex. P/8) of the place near the Railway track from where the dead body of Bajranga was found. 20. We have found the following inherent infirmities in the prosecution case:- (i) Place of occurrence where the murder of deceased Bajranga was committed could not be established. The SHO Rafiq Ahmed (PW 27) had drawn site plan (Ex. P/8) of the place near the Railway track from where the dead body of Bajranga was found. The details of site plan given below are relevant: "GHATNA STHAL KO DEKHNE SE PRATIT HOTA HAI KI ISS LAS KI HATYA KARNE KE BAD HATYARON NE LAS KE SBOOT NAST KARNE KE LIYE RAILWAY PATTI PAR RAKHA LEKIN LAS KA RAIL SE AIK DAHINE PER KA ANGUTA KUCHLA HUA HAI BAKI LAS RAILWAY LINE PAR NHI RAKH SAKE" (It appears that the Murderer after committing murder, put the dead body on the Railway track in order to destroy the evidence but they could not properly place it over the track as the train could only crush thumb of the right leg of the dead body) The police had submitted charge-sheet against the appellant Under Sections 302, 201, 457 & 380 of the Indian Penal Code and charges under these Sections were framed against him but the trial Court acquitted the appellant from the charge Under Section 201 Indian Penal Code, though convicted for the other charges. So according to the prosecution the Railway track, site plan of which was prepared vide Ex. P/8, was not a place where murder of deceased Bajranga had taken place. It may also be observed that in the details of the site plan (Ex. P/8) the Investigating Officer had used the word 'hatyaro' (murderers). It goes to show that Investigating Officer was of the view that more than one person had committed the crime, whereas the charge-sheet was filed only against the appellant. The Station House Officer, Ranjeet Singh (PW 21) had also prepared site plan (Ex. P/5) of the room where the deceased used to sleep and from where the cigarette cartons were removed. The Station House Officer, Ranjeet Singh (PW 21) had also prepared site plan (Ex. P/5) of the room where the deceased used to sleep and from where the cigarette cartons were removed. Adjacent to the room where the deceased used to sleep, there was a chowk where the Investigating Officer found a spot of blood and hair : " IS CHOK MAIN SE PURVA KI TARF CHHAT NAMBER 12 PAR GATE KHULTA HAIN JISME `B' STHAN PAR KHOON KA DHABA MAIN VA BAL JAME HUA H AIN" (From this chowk there is a gate which opens towards roof No. 12 where at place `B' there is a spot of blood with hair) But in the cross-examination Station House Officer Ranjeet Singh (PW 21) has stated : "KAMRE MEIN CHHAT KE UPAR JO DHABE THE VO PAHLE MUJE KHOON KE NAJAR AAYE THE LEKIN BAD MAIN MUJE PATA LAGA KI PAN KI PEEK KE DHABE THE NAKSA MOKA BANNANE KE BAD MAIN YAH PATA CHALLA KI YAH DHABVE PAN KI PEEK KE THE" (The spots found over the roof were initially looked like blood but after making the site plan I came to know that those spots were of spit of betel). So according to Ranjeet Singh (PW 21) the room or nearby place of the room was not the place of the occurrence According to Dr. C.M. Maheshwari (PW 23) who conducted the postmortem the deceased sustained as many as 12 ante-mortem injuries out of which five were incised wounds and undoubtedly large quantity of blood ought to have been spread on the place where the deceased was attacked. We are also not in a position to believe that a single person could commit the crime in the manner as has been suggested by the prosecution. A perusal of entire evidence reveals that there was no scuffle in the room of the deceased and cigarette cartons were removed without any disturbance. But who removed the cartons ? This is a question which could not be answered by bulk of evidence produced by the prosecution. (ii) A close scrutiny of the statement of driver of the Matadoor Dharmveer Singh (PW 16) goes to show that he did conceal certain facts. But who removed the cartons ? This is a question which could not be answered by bulk of evidence produced by the prosecution. (ii) A close scrutiny of the statement of driver of the Matadoor Dharmveer Singh (PW 16) goes to show that he did conceal certain facts. He has not identified the appellant in the Court but he has identified the photograph and the clothes of the deceased, whom he had only seen for a while in the darkness. This witness is not of a sterling worth. The only allegation which has been levelled by him against the appellant is that the appellant and deceased had gone towards dark place and after about forty five minutes, the appellant returned alone. This statement even if it is believed is not sufficient to connect the appellant with the murder of the deceased. Can it be possible for a single person to commit murder of a grown up man and to place his dead body over the railway track within a small period of 45 minutes ? Every prudent man will answer this question in negative. Moreover, this witness does not say that when the appellant returned alone after forty five minutes he was wearing blood stained clothes. (iii) Another infirmity of the prosecution case is that it has failed to examine the blood group of the appellant so as to prove without doubt that blood found over the clothes of the appellant was none other but the blood of deceased only. (iv) The prosecution also could not explain the circumstances under which two knives were used by the appellant. Was one knife not sufficient for inflicting the injuries ? The recovery of knives also does not inspire confidence as they were recovered from open place. 21. The prosecution thus could not establish that there was any connection of removed cigarette cartons with the murder of the deceased. The prosecution however could not prove the charges of house breaking and theft against the appellant on the basis of recovery of cartons alone from the custody of shop keeper in Delhi, presumption of house breaking by night cannot be drawn against appellant. The prosecution however could not prove the charges of house breaking and theft against the appellant on the basis of recovery of cartons alone from the custody of shop keeper in Delhi, presumption of house breaking by night cannot be drawn against appellant. However, the recovery of cigarette cartons belonging to the deceased at the instance of the accused is fully established by the prosecution and appellant can only be held liable for being in possession of stolen property and thus, guilty of offence Under Section 411 Indian Penal Code. 22. In a case of circumstantial evidence the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. The prosecution has failed to prove the offence of murder against the appellant beyond reasonable doubt. The trial Court has not properly appreciated the inherent infirmities of the prosecution case and fell in error in convicting the appellant for committing offences Under Section 302, Indian Penal Code. 23. As a result of the above discussion, we partly allow the appeal of the appellant and set aside the judgment of the trial Court. We acquit the appellant of the offences Under Sections 302, 457 & 380 of the Indian Penal Code but convict him for the offence Under Section 411 Indian Penal Code. The appellant has already been in jail for nearly three years', considering the circumstances we sentence him to the term of imprisonment already undergone. The appellant shall be set at liberty forthwith if not required in any other case.Appeal partly allowed. *******