JUDGMENT 1. - Accused-appellants Dharampal and Momen have been found guilty of charges under sections 302, 302/120-B, 201, 364 & 394 of the IPC. Appellant Man Singh has been held guilty of offences under sections 302/120-B, 201 & 364 of the IPC. Appellants Dharampal and Momen have been sentenced to undergo life imprisonment with Rs. 10,000 /- as fine for the offence under sections 302, 302/120-B, IPC. They have been sentenced to undergo ten years rigorous imprisonment each with fine of Rs. 1000/- each for the offence under sections 394 & 364 IPC. Both of them have been sentenced to undergo seven years rigorous imprisonment with Rs. 1000/- as fine for offence under section 201 IPC. Appellant Man Singh has been sentenced to undergo life imprisonment with Rs. 10,000 /- as fine on the charge u /s. 302/120-B IPC. He has been sentenced to undergo ten years R.I. with Rs. 1000/- as fine on the charge under section 364 IPC. He is also sentenced to undergo seven years R.I. with Rs. 1000 /- as fine on the charge under section 201 IPC. 2. On 21.6.1988 PW 3 Hari Singh had filed an application in the Bhirani Police Station informing that at 5.00 p.m. on that date, Ram Singh Gosai had informed him that a dead body was lying in the fields in the area. The Station House Officer went on the spot on 21.6.1988 itself and took the moulds of foot prints found on the spot. On 22.6.1988 he prepared Panchnamas, got the dead body photographed and sent it for postmortem examination. Clothes from the dead body had also been seized. 3. PW 1 Prem Singh owned a white Maruti Car. In the latter half of June, 1988 he had hired Jogendra Singh (deceased) as Driver on the Car. On 20.6.1988, the Car and Jogendra Singh were last seen at Hissar, the place of residence of owner of the Car as also of the Driver Jogendra Singh. He was last seen there in the evening of 20.6.1988 by PW 2 Virbhan, his brother-in-law, PW 8 Usha, the wife of the deceased PW 10 Gopi Lal and PW 11 Sunder Lal. Out of these, PW 10 Gopi Lal and PW 11 Sunder Lal had seen three persons in the Car which was being driven by the deceased, who were later identified by them as accused persons. 4. Out of these, PW 10 Gopi Lal and PW 11 Sunder Lal had seen three persons in the Car which was being driven by the deceased, who were later identified by them as accused persons. 4. On 24.6.1988 a Rojnamcha entry was made in the daily diary of Police Station of City Kotwali, Hissar in respect of disappearance of the Maruti Car as well as of its Driver Jogendra Singh. On 24.6.1988 itself PW 1 Prem Singh, the owner of the Maruti Car Virbhan PW 2, the brother-in-law of the deceased Jogendra Singh and Pramod Kumar of Hissar went to the Police Station Bhirani having come to know that a dead body was found within the area of the Police Station. 5. When Virbhan, Prem Singh and Pramod Kumar met the Station House Officer on 24.6.1988, the Station House Officer showed them wearing apparel seized from the dead body and these persons identified the same to be those of the deceased. Statements of these witnesses under section 161 of the Code of Criminal Procedure were recorded by the Station House Officer. Virbhan informed the Station House Officer that he had received information that a white Maruti Car was standing near Khasa Ma hajan. The Station House Officer along with these persons went there, found the Car, which was identified by Prem Singh as his own. On 25.6.1988 the Station House Officer received information that the Car had gone up to Bhagwana Ram's 'dhani' and on that Bhagwana Ram's statement under section 161 of the Code of Criminal Procedure was recorded. On 30.6.1988 Bhagwana Ram named the accused persons who were arrested on 24.7.1988 at 3.00 p.m. After trial the appellants were found guilty and sentenced as stated above. 6. The prosecution evidence rests on circumstances as nobody had actually seen the offence being committed. The main circumstances on which the conviction is based are as follows: (i) That the deceased was last seen together with the accused-persons. (ii) The extra-judicial confession of the accused - persons made before PW 7 Bhagawana Ram. (iii) Recovery of the articles belonging to the deceased and other articles from the accused persons. (iv) Foot prints of the accused persons found near the dead body. (v) Accused persons having been found in possession of the stolen Maruti Car after the murder. 7. (ii) The extra-judicial confession of the accused - persons made before PW 7 Bhagawana Ram. (iii) Recovery of the articles belonging to the deceased and other articles from the accused persons. (iv) Foot prints of the accused persons found near the dead body. (v) Accused persons having been found in possession of the stolen Maruti Car after the murder. 7. On the circumstance of the deceased being last seen together with the accused persons, there is the testimony of PW 11 Sunder Lal, the brother of the deceased and PW 10 Gopi Lal. PW 5 Pramod was also examined but he turned hostile. There is anciliary evidence of PW 2 Virbhan and PW 8 Usha Rani on the point of the deceased having been last seen at Hissar in the evening of 20.6.1988. 8. PW 8 Smt. Usha Rani, the wife of the deceased stated that the deceased had been employed on the Car of Prem Singh as a Driver five to six days earlier to the incident. On 20.6.1988 at about 6.00 - 7.00 p.m. the deceased had come home for changing clothes. According to PW 8 Usha Rani he told her that he would go with two passengers to Bhadra and from there he would take other passengers to Delhi as the passengers had to go to Delhi in connection with a marriage proposal. He told her that he would return by the evening of 21.6.1988. The deceased did not return thereafter. 9. PW 2 Virbhan, brother-in-law of the deceased also stated that on 20.6.1988 deceased Jogendra Singh had met him in the evening. He gave description of clothes, shoes and watch worn at that time by the deceased also. He further stated that on 20.6.1988 at about 8.00 - 8.30 p.m. Jogendra Singh had met him at Hissar. He had come driving a Maruti Car. As he did not support the prosecution on his having seen the passengers in the Car, the witness was declared hostile and cross-examined by the Public Prosecutor. In his cross-examination nothing which would connect the accused persons with the crime came out. 10. PW 10 Gopi Ram deposed that he was the owner of a truck in partnership with Sunder Lal, brother of the deceased. Sunder Lal was the Driver of the truck of Gopi Ram. In his cross-examination nothing which would connect the accused persons with the crime came out. 10. PW 10 Gopi Ram deposed that he was the owner of a truck in partnership with Sunder Lal, brother of the deceased. Sunder Lal was the Driver of the truck of Gopi Ram. On 20.6.1988 at about 8.45 - 9.00 p.m. Gopi Ram and Sunder Lal were standing at Nagour Gate at Hissar on their way home. According to Gopi Ram deceased Jogendra Singh came in a white Maruti Car, stopped the Car near them and told Sunder Lal that he was going to Bhadra and would go to Delhi from Bhadra in the morning after taking passengers from there who had to go to Delhi in connection with some matrimonial ceremony. Joginder Singh asked them as to why they were standing there and they replied that they were going home. According to this witness when Jogendra was talking to them three passengers sitting in the Car were egging on Jogendra Singh to make haste as they were getting late. Gopi Ram also gave description of these three passengers. He had seen them in the Mercury Street Light. Jogendra Singh went on with the Car. Next day Sunder Lal went to Siligudi. On 23-24.6.1988 the witness noticed commotion at Sunder Lal's place and on inquiry came to know that persons who had taken Jogendra in Car had killed him in Rajasthan. According to the witness he told the members of the family of Sunder Lal that he himself and Sunder Lal had seen those persons going in the Car. On 25.6.1988 Virbhan PW 2 told this witness that Police from Bhirani had come and was investigating in to the crime and he was called at the Bus Stand. The witness went there and told the Station House Officer, the entire story. He had also informed the Station House Officer that he was in a position to identify the persons with whom deceased Jogendra Singh was last seen. He was then summoned for identification parade which was held on 30.6.1988 and he identified the accused persons before the Magistrate. He also deposed that accused Dharampal was sitting along with the Driver it the front seat, accused Man Singh was sitting behind the Driver on the back seat and accused Momen Ram was sitting by the side of Man Singh. 11. He also deposed that accused Dharampal was sitting along with the Driver it the front seat, accused Man Singh was sitting behind the Driver on the back seat and accused Momen Ram was sitting by the side of Man Singh. 11. In his cross-examination, this witness was asked questions suggesting that he was a stock witness of the Police and he had not actually seen the accused persons and had not met Jogendra Singh on that day. Apart from an omission in his statement to the Police Ex. D/5, about his having come to know at the house of Sunderlal that Jogendra had died, nothing of consequence came out in the cross-examination. About the identification also, the witness maintained his stand in the examination-in-chief. 12. PW 11 Sunderlal deposed that he was the Driver and co-owner of Truck No. HRT 8681 with Gopi Ram. On 20.6.1988, at about 8.45 - 9.00 p.m. Gopi Ram and the witness were standing on a Scooter Stand at Nagour Gate on their way home. His brother Jogendra came driving a Maruti Car No. HNG 72. Jogendra enquired as to how they were standing there and they replied that they were going home. Jodgendra told them that he was taking passengers to Bhadra and from Bhadra he would go to Delhi in connection with some betrothal ceremony and would return home by the next evening. He told them to look after his family. The witness also informed Jogendra that his loaded Truck had developed a fault and was standing in the market and he had to go to Siliguri. There were three passengers in he Car being driven by Jogend ra. These three passengers were asking Jogendra to make haste as they were getting late. The witness gave description of these three persons and also described the clothes worn by Jogendra. Next day the witness went to Siliguri and returned on July 16, when he came to know that Jogendra was killed by the passengers of the Car near Jogiwala. The witness identified Dharampal to be the passenger sitting by the side of Jogendra in the Maruti Car. Accused Man Singh to be the passenger sitting just behind the Jogendra on the back seat and accused Momen to be the person sitting by the side of Man Singh on the back seat. The witness identified Dharampal to be the passenger sitting by the side of Jogendra in the Maruti Car. Accused Man Singh to be the passenger sitting just behind the Jogendra on the back seat and accused Momen to be the person sitting by the side of Man Singh on the back seat. The witness deposed that he had identified the clothes of Jogendra before the Magistrate and had also identified the accused persons before the Magistrate. 13. In his cross-examination, the witness was asked questions to test the veracity of his statement that he had gone to Siliguri and that he had met Jogendra on 20.6.1988 but the witness was not shaken. The witness also deposed that when Jogendra had stopped the Car and talked to them the cabin light of the Car was off but the Sodium Vapour Lamp of the street were bright enough. Certain omissions were then pointed to the witness in his statement to the Police Ex. D/6. He had not mention in his Police statement that Jogendra had told him that he had to go from Bhadra with passengers who were going for a betrothal ceremony at Delhi. He was contradicted by his statement in Ex. D/6 about the complexion of accused Dharampal and he replied that he told the Police that he was of fair complexion and not of blackish complexion. 14. Thus so far as the witnesses having seen Jogendra last time at Hissar in the evening of 20.6.1988 the prosecution case is established. That he was seen with the accused persons can only be taken to be established if the identify the persons seen by the witnesses with deceased Jogendra Singh in the Car on 20.6.1988 at Hissar is established. The evidence of identification is therefore very important. 15. The accused persons Dharam Pal, Momen Singh and Man Singh were arrested on 24.7.1988 vide memoranda Ex. P/65, Ex. P/66 and Ex. P/67 respectively. The Identification Parade was held on 30.7.1988 vide memoranda Ex. P/19, Ex. P/20 and Ex. P/21. PW 23 Mahavir Prasad, the Investigating Officer stated in examination-in-chief that these accused persons were kept under veil (baparda). On the date of their arrest itself, they had given information to the Police on the basis of which recoveries of certain articles were made. The Identification Parade was held on 30.7.1988 vide memoranda Ex. P/19, Ex. P/20 and Ex. P/21. PW 23 Mahavir Prasad, the Investigating Officer stated in examination-in-chief that these accused persons were kept under veil (baparda). On the date of their arrest itself, they had given information to the Police on the basis of which recoveries of certain articles were made. He denied the suggestion in his cross-examination that the accused persons were shown to witnesses Gopi Ram, Sunder Lal and Noja Ram before they were sent to Judicial custody. 16. PW 10 Gopi Ram deposed in his statement that he had identified the accused persons rightly before the Magistrate. Similarly PW 11 Sunder Lal deposed that he had identified the accused persons before the Magistrate. He had denied the suggestion that the accused persons were shown to him before the Identification Parade. PW 9 Ramesh Chandra, Judicial Magistrate proved the proceedings of identification conducted by him. He stated that the witnesses PW 10 Gopi Ram and PW 11 Sunder Lal had identified the accused persons correctly in the Identification Parade. However, from Ex. P/19 and Ex. P/20, it is clear that the accused persons had complained before PW 9 Ramesh Chandra himself that they had been shown to the witnesses while in custody. Accused Dharam Pal had stated as per Ex. P/21 that he had not given any application for identification and the witnesses had seen them in the Police Station for 15 to 17 days. He also stated that the witnesses had taken them to their house for two and half to three hours and the Station House Officer had shown them to the witnesses. Accused Momen Ram had told the Magistrate at the time of identification as per Ex. P/20 that they were got beaten in the Police Station at the hands of the witnesses and the witnesses remained with them for 17 days. They had taken the accused persons to their houses on 24.7.1988 and there they had abused them. Accused Man Singh had stated to the Magistrate as per Ex. P/19 that the witnesses had seen him at the Police Station for seventeen days. He also complained of being beaten by the witnesses. He also stated that the witnesses already knew him and the witnesses had taken them in a Jeep with the Police to their house. 17. Accused Man Singh had stated to the Magistrate as per Ex. P/19 that the witnesses had seen him at the Police Station for seventeen days. He also complained of being beaten by the witnesses. He also stated that the witnesses already knew him and the witnesses had taken them in a Jeep with the Police to their house. 17. Returning to the statement of PW 10 Gopi Ram, we find that he had seen the three accused persons on 20.6.1988 sitting in the Car. The description given by him was that one of them who was sitting by the side of the Driver was 20-23 years of age wearing blue shirt and was of a blackish complexion, the person sitting behind the Driver was having big mustaches and big eyes with fair complexion. He was aged about 30 years and was wearing shirt and paijama. The man sitting with him on the back seat was a tall, stout and young man of 25-26 years. The witness had admitted that the cabin light of the Car was not on but the mercury street light was very bright. The witness stated that he had carefully seen these three persons when they asked Jogendra to make haste. In his cross-examination, the witness stated that Jogendra had stopped the Car on the open space. Jogendera had talked with them for 5-10 minutes only. The witness also stated that they were standing just below a powerful sodium vapour light and that they had talked with Jogendra while Jogendra was sitting in the Driver kat. The witness then stated that he was standing on the opposite side of the Driver and had talked to Jogendra from that side. Thus Maruti being right-hand-driven vehicle, the witness had a talk with Jogendra with one of the passengers in between them. 18. PW 11 Sunder Lal deposed that the man who was sitting by the side of Jogendra was of 22-23 years of age with a fair complexion and small moustaches. Thus the two differ on the complexion of the person sitting in the front seat along with Jogendra. PW 10 Gopi Ram says that he was of blackish complexion while PW 11 Sunder Lal says that he was of fair complexion. PW 10 Gopi Ram does not note moustaches of the person but PW 11 Sunder Lal noted it. Thus the two differ on the complexion of the person sitting in the front seat along with Jogendra. PW 10 Gopi Ram says that he was of blackish complexion while PW 11 Sunder Lal says that he was of fair complexion. PW 10 Gopi Ram does not note moustaches of the person but PW 11 Sunder Lal noted it. The two witnesses have not differed on the description of the person who was sitting behind Jogendra but they again differ on the description of the person who was sitting on the back seat by the side of the person who was sitting behind Driver Jogendra. PW 10 Gopi Ram described him as a tall and stout man of 25-26 years while PW 11 Sunder Lal described him as a person of 24-25 years with a small moustaches and beard and having wheatish complexion. PW 11 also stated that when they had a talk with Jogendra, the cabin light of the Car were off and only sodium lamp on the street was on. He also deposed that none of the four persons in the Car stepped out of the Car. Both these witnesses had pointed out at the time of their statements in the Court that Dharam Pal was the person sitting by the side of Jogendra on the front seat, accused Man Singh was sitting on the back seat of the Driver and accused Momen Singh was sitting on the back seat by the side of Man Singh. Thus, so far as the identification of the appellants Dharam Pal and Momen Singh is concerned, there is a difference in their description given by these two witnesses, as already pointed above. 19. If we take into consideration the over all circumstances, the witnesses PW 10 Gopi Ram and PW 11 Sunder Lal had not seen the accused persons before 20.6.1988. 19. If we take into consideration the over all circumstances, the witnesses PW 10 Gopi Ram and PW 11 Sunder Lal had not seen the accused persons before 20.6.1988. Therefore, assuming that they were not shown the accused persons thereafter till 30.7.1988, when the Identification Parade took place and they had seen accused persons on 20.6.1988 only within the short span of 5-10 minutes when they were having a talk with Jogendra and the accused persons were sitting in the Car without cabin lights on, it cannot be believed that they could have so carefully observed the accused persons who were mere passengers in the Car with whom the witnesses had nothing to do, to such an extent that they could identify them on that basis more than a month afterwards. Even if the sodium vapour light is assumed to be very bright, when the witnesses say that they were standing just below the lamp, it means that the light was not directly entering into the cabin of the Maruti Car. Moreover when passengers were in a sitting position in the compact cabin of Maruti Car, it is very difficult to believe that height of the persons or their being stout or being of particular complexion can be noted by any one. Moreover, the witnesses having no inkling about the passengers in the Car being up to some mischief and the witnesses being engaged in conversation with Jogendra Singh, it can not be believed easily that they had either the time or the occasion to pay attention to the passengers to the extent of noting the identification marks or descriptions of the passengers sufficient to identify them after over a month. 20. We are therefore, unable to accept the evidence of these witnesses as to identification by them of the accused persons to be the passengers who were seen by them on 20.6.1988. 21. The next circumstance is extra-judicial confession said to be made before PW 7 Bhagwana Ram by the accused persons. 22. PW 7 Bhagwana Ram deposed that on 21.6.1988 at about 4.30 in the morning when he was sleeping, somebody gave a call from outside asking whether he was at home or not. He went on the terrace and saw that at a distance of about one killa from his 'dhani', a white Maruti Car was standing and accused Man Singh was standing there. He went on the terrace and saw that at a distance of about one killa from his 'dhani', a white Maruti Car was standing and accused Man Singh was standing there. On being called by Man Singh, he came down. Man Singh by that time had reached his 'dhani'. Then, Man Singh and the witness went to the Car. In the Car two persons Dharam Pal and Momen Ram were sitting. When he asked Man Singh as to what was the matter, he replied that the persons in the Car had stolen a Car and the witness should hide the Car for 3-4 days. The witness refused to oblige and asked them to take the Car away. Thereupon Dharampal and Momen Ram told the witness that they will give him something after selling the Car and, therefore, the witness should hide the Car. The witness abused them and asked them to take away the Car. They went away. The witness knew Man Singh as they were together in Central Jail for sometime. The witness knew Dharampal and Momen. Ram also because they had met him at Man Singh's Hotel 5-7 days prior to the incident. The witness further deposed that he had asked the accused persons as to how they had brought the Car on which Dharam Pal had replied that the Car was stolen by them. When the witness further persued the matter with Oharam Pal he told him that Momen and Dharam Pal himself had killed the Driver. On this the witness asked them to go away saying that he did not want to see their faces. The witness stated that he had not told the Police that Man Singh had stolen the Car or all of them having killed the person but he had told the Police about Dharam Pal alone having done that. As the witness had taken a line different from the prosecution case, he was declared hostile and was cross-examined by the Public Prosecutor. He was confronted with his statement to the Police. He admitted that he had told the Police that Dharam Pal and Momen Singh had told him that they had killed the man. In his cross-examination by the learned counsel for the accused persons, the witness stated that he had not told any one about the incident till his statement was recorded by the Police. He admitted that he had told the Police that Dharam Pal and Momen Singh had told him that they had killed the man. In his cross-examination by the learned counsel for the accused persons, the witness stated that he had not told any one about the incident till his statement was recorded by the Police. In his cross-examination, the witness stated that he had been an accused person in a murder trial and because of fear he did not stir out of his 'dhani'. The witness denied the suggestion that at 4.30 a.m. during those days light was not sufficient. The witness also stated that he did not care to see the Registration Number of the Car. 23. While assessing the evidence of this hostile witness, it will have to be seen in the first place as to how the Investigating Officer stumbled upon him, because the witness categorically stated that he had not uttered a word to any one prior to his statement being recorded by the Police. PW 23 Mahavir Prasad, the Investigating Officer stated that he had received an information from an informer that the Car in question had gone towards Bhagwana Ram Bishnoi's 'dhani'. On this he went to Bhagwana Ram and recorded his statement u /s. 161 of the Code of Criminal Procedure. Thus, there was no investigation as to who was the person who had seen the Car going towards Bhagwana Ram's 'dhani'. The Investigating Officer absolved himself of the responsibility of further investigating to find out if any one had seen the Car going towards Bhagwana Ram's 'dhani' by conveniently recording that such information was received from an informer. If any one had seen the Car going towards Bhagwana Ram's 'dhani', he must have also seen the incumbents of the Car or at least the person - driving it. In a case based on circumstantial evidence not pursuing the clue provided by an informer that a vehicle had gone towards Bhagwana Ram's 'dhani' has to be taken to be a lapse on the part of the Investigating Officer. In a case based on circumstantial evidence not pursuing the clue provided by an informer that a vehicle had gone towards Bhagwana Ram's 'dhani' has to be taken to be a lapse on the part of the Investigating Officer. Moreover, Bhagwana Ram does not support the prosecution case in to, and has adopted a pious stand posing as if he was a very innocent and law abiding person and, therefore, he did not want to even see the face of accused persons on their telling him that they had stolen the Car and killed a person. It is note-worthy that he was admittedly facing a murder trial and had also been to Jail along with Man Singh. Even otherwise, it cannot be countenanced that any one after having committed crime would contact such a person for help about whom he was not sure as to whether he will participate in the crime or whether he would give him shelter. If Bhagwana Ram was that pious a soul there was no possibility of the accused person contacting him with an offer to share the booty. At least, they would not have confessed before him of the murder of which he could have otherwise had no inkling. The circumstance of extra-judicial confession, therefore cannot also be taken to be proved. 24. The next circumstance is about the accused persons being found in possession of the stolen Maruti Car after the murder of Jogendra Singh. 25. PW 4 Noza Ram deposed that on 21.6.1988 when he was in his 'dhani' and had got up at five O'clock in the morning a white Maruti Car came to the 'dhani' and a man got down from it. He stated that the fuel tank of the Car was empty and he was going for bringing the fuel. He asked the witness to keep an eye on the Car. The person told the witness that his name was Dharma. He went towards the eastern side and did not return on that day. He did not return on second and third day also. Then the witness went to the Village - Khasa Mahajan and told the villagers. The villagers told him to wait and to lodge a report on the next day. He went towards the eastern side and did not return on that day. He did not return on second and third day also. Then the witness went to the Village - Khasa Mahajan and told the villagers. The villagers told him to wait and to lodge a report on the next day. On 24th evening at about 7.00 p.m. the Station House Officer, Police Station Bhirani came to his 'dhani' along with a person who claimed the Car to be his. The Station House Officer saw the Car. It had no Registration numbers. On an inspection of the Car, it was found that fuel tank was not empty. Noza Ram gave the description of the person to be of 23-24 years of age having blackish complexation and he was wearing a blue full sleeves shirt and white trousers. The witness claimed to have identified the person who had come to him, as Dharam Pal, the accused, before the Munsif Magistrate as well as in the Court. In his cross-examination, he admitted that his wife had got awakened when the Car had come to his 'dhani' and all other members of the family were sleeping on adjoining cots. He also stated that on that day at 5.30 a.m. the sun had yet to rise and there was some darkness. The witness stated that he had seen a mark of injury on the eyes of the person and he had told the Police that the person seen by him was of blackish complexion and he had a mark of injury on his eyes. He had however not told the Magistrate PW 9 Ramesh Chandra about the identification marks of an injury on the eye. This witness had gone for identification of the accused persons before the Magistrate. In Ex. P/21, the memoranda of identification parade, he had correctly identified the person. Here again, the question remains as to whether a person who had casually seen someone who had come to him early in the morning asking him to keep a watch on the Car as he was going to fetch the fuel would observe him so carefully that he could identify him after over a month. It is also doubtful that accused person who had stolen a Car and committed a murder would go to a stranger and ask him to keep a watch on the Car. It is also doubtful that accused person who had stolen a Car and committed a murder would go to a stranger and ask him to keep a watch on the Car. Why would a person create such evidence against himself of his association with a Car involved in the crime. As the fuel tank was not empty the only idea behind leaving back the Car was to abandon at least it for sometime if not for ever. There was therefore no necessity for the accused person to go to the witness and to create evidence against himself and of even disclosing his correct name to a total stranger. Moreover, at about 4.30 a.m. on the same day, the Car along with the three accused persons was claimed to be seen by Bhagwana Ram where did the other accused persons go after that is not put on record, and there seems to be no investigation into that. PW 23 Mahavir Prasad had stated that Bhagwana Ram's 'dhani' was at a short distance from Noza Ram's 'dhani'. In this state of evidence it is difficult to believe that a person who has stolen a car and murdered a person would without any reason go to a stranger for asking him to keep a vigil over the car and thus create an evidence against himself that too, by giving to the stranger his correct name. 26. In all these circumstances, it would not be safe to rely on the statement of PW 4 Noza Ram that he had seen accused Dharma in the Car in the morning of 21.6.1988. 27. PW 13 Kalu Ram deposed that on 20.6.1988, he was on duty on Bhadra Barrier as Head Constable attached to Bhirani Police Station. He was on duty then from 6.15 p.m. to 1.00 a.m. of 21.6.1988. He was recording the number of vehicles and names of Drivers passing through the Barrier. He checked a vehicle with Registration No. HNG 72 whose Driver told him that his name was Dharan Pal. He had also checked the licence of the Driver. The car had returned after sometime and went towards Balsamandar. Besides the Driver one other person was also in the car. He exhibited the entries in the papers of the outpost made by him on that occasion. He had also checked the licence of the Driver. The car had returned after sometime and went towards Balsamandar. Besides the Driver one other person was also in the car. He exhibited the entries in the papers of the outpost made by him on that occasion. In his cross-examination the witness admitted that no Register was maintained at the Barrier for recording entries relating to vehicles passing through the Barrier. He also admitted that on that Barrier Sales Tax Inspector and his staff is posted and they make entries in their Register about trucks passing through the barrier. The witness also recorded passing of trucks in his list. He admitted that no such list of vehicles passing through the Barrier was made by him earlier. He also admitted that the list Ex. P/30 does not bear his signatures. He of course denied the suggestion that Ex. P/30 was a concocted or forged document. It is difficult to believe the testimony of this witness. Nothing has been brought on record to show that the checking of cars was carried to show that the checking of cars was carried out under a general or special order for checking or that there was a regular practice of checking the cars passing through the Barrier and of recording the names of Drivers. The witness himself has done it only once when he prepared the list Ex. P/30. A perusal of the loose leaf Ex. P/30 in original inspires little confidence. It is on a plain foolscap paper without any serial number and without the name or signatures of the constable on duty making entries therein. Up to serial No. 9 entries of vehicles passing through between 6.15 p.m. to 10.30 p.m. are recorded along with names of Drivers along with names of their respective fathers. Thereafter there is big space between serial No. 9 and Serial No. 10, within which as many a six entries are made and the entry relating to the stolen car is fourth amongst these. Times as regards these entries are not recorded whereas entry No. 10 is made at 1.30 a.m. There are over-writings all over the document. In these circumstances authenticity of the document and entries recorded therein and their probative value is extremely doubtful. The charge that Ex. P/30 is a concocted piece of evidence cannot be easily shaken off. 28. Times as regards these entries are not recorded whereas entry No. 10 is made at 1.30 a.m. There are over-writings all over the document. In these circumstances authenticity of the document and entries recorded therein and their probative value is extremely doubtful. The charge that Ex. P/30 is a concocted piece of evidence cannot be easily shaken off. 28. From the above discussion it is clear that the circumstance of the accused person having been found in possession of the stolen car after the murder has also not been proved. 29. The next circumstance is recovery of the articles belonging to the deceased and some other articles from the accused persons. 30. According to PW 23 Mahavir Prasad, after Dharam Pal was arrested on 24.7.1988, he gave information that he had taken from the pocket of the Driver two documents which he had hidden in an iron box beneath the clothes. This information was recorded in a memoranda which is Ex. P/68. Dharam Pal took the Investigating Officer to his house and at his instance the paper relating to Insurance of Car No. HNG 72 and an Intimation Letter of challan relating to HRF 7171 recovered. Again on 1.8.1988 Dharam Pal gave an information while in custody about remaining piece of cotton rope used for strangulating the deceased. He gave information about his own Driving Licence and Key of the Maruti Car. The Investigating Officer at the instance of accused Dharam Pal then recovered the Driving Licence and Key of the Maruti Car. One Surja Ram son of Dalu Ram resident of Kurdi and Mahavir Singh son of Harlal resident of Kurdi wee witnesses of memoranda relating to recovery at the instance of accused. Surja Ram was not examined and only PW 12 Mahavir Singh was examined by the prosecution. It is note-worthy that Surja Ram was the person from the same village where the recovery was affected and Mahavir Singh was from Bhirani Village where the Police Station was situated. 31. In his cross-examination, this witness admitted that during the investigation the Police had retained his Jeep for 3-4 days and he was with the Police during those days. He also admitted that during last six years his Jeep was requisitioned for investigation by the Police several times and he is made to sign memoranda of recovery by the Police in several cases. He also admitted that during last six years his Jeep was requisitioned for investigation by the Police several times and he is made to sign memoranda of recovery by the Police in several cases. He stated that when the Police do not find any one else at the time of recovery, they take his signatures. The recovery of articles from Dharampal appears to be doubtful. First of all, it does not stand to reason that a person who has committed murder of the Driver and has stolen the Car would take out from the body of the deceased Driver papers relating to the Insurance of the Car. This is not the normal human conduct. When the accused persons were trying to dissociate from the car by abandoning it. It cannot be accepted that one of them took away the papers of Insurance of the Car and Challan papers from the body of the Driver. So far as the recovery of Key of a Maruti Car is concerned, it is of no consequence as the Key has not been connected by any witness with the Car alleged to be stolen by the accused persons. 32. So far as recovery from Momen Ram is concerned, he gave information about an electronic watch he had taken off the body of the Driver. A memorandum Ex. P/69 was prepared about this information. The recovery of the watch at the instance of Momen Ram was recorded in memoranda Ex. P/22. The information was not given in presence of any witness. The recovery was made in presence of two witnesses Surja Ram and Mahavir Singh. Only Mahavir Singh has been examined as PW 12. He has supported the prosecution on the recovery. The watch was identified by PW 8 Smt. Usha Rani, wife of the deceased and PW 11 Sunder Lai, the brother-in-law of the deceased in an identification of article held before PW 9 Ramesh Chandra. The watch was identified by PW 8 Smt. Usha Rani and PW 11 Sunder Lal in the Court also. 33. From all this evidence there is no doubt that the watch produced in the Court belonged to the deceased. The only question is whether it was recovered at the instance of the accused persons. The watch was identified by PW 8 Smt. Usha Rani and PW 11 Sunder Lal in the Court also. 33. From all this evidence there is no doubt that the watch produced in the Court belonged to the deceased. The only question is whether it was recovered at the instance of the accused persons. As already observed there were no independent witnesses before whom the information was given and the only evidence on this count is that of PW 23 Mahavir Prasad, the Investigating Officer. It is not safe to rely on the lone statement of Investigating Officer about the information being given when the Investigating Officer has not shown that it was not possible to get witnesses to evidence the information being given by the accused persons. 34. The next circumstance relied on by the prosecution is of the foot prints of the accused persons found near the dead body. 35. PW 23 Mahavir Prasad stated that when he received information about a dead body lying in the field on 21.6.1988, he went to the spot and found marks of foot-steps of two persons one wearing 'sandles' and the other 'juti'. He took the moulds of the marks in the presence of Harisingh and Raman and sent them for examination. PW 3 Hari Singh turned hostile on the point of time when the Police went to the spot and took the moulds. He stated that the moulds were taken on 22.6.1988 and not on 21.6.1988. He also stated that the Station House Officer threatened him and therefore, he signed the memoranda. The other witness of the 'panchnama' was not examined. Moreover, PW 3 Hari Singh had also stated in his cross-examination that a sand storm was blowing when they bad gone to the spot and had taken the moulds. He also stated that sand storm was blowing for the preceding 2-3 days of the incident. He also admitted that because of sand storm the foot prints were not clearly visible. He also admitted that there were several persons of the village on the spot and many Villagers had collected on the spot. He also stated that when the Police arrived at the spot, at that time hundreds of villagers were moving around. He also admitted that because of sand storm the foot prints were not clearly visible. He also admitted that there were several persons of the village on the spot and many Villagers had collected on the spot. He also stated that when the Police arrived at the spot, at that time hundreds of villagers were moving around. In the aforesaid circumstances, the evidence on the point is insufficient to connect the accused persons with the crime, that the moulds of the foot prints taken by the Police were reliable piece of evidence. 36. In the aforesaid state of evidence, we are unable to agree with the trial Court that the circumstances established a clear link pointing to the guilt of the accused persons totally negating the possibility of their innocence. The conviction is therefore not sustainable and has to be set aside. 37. We are really shocked to find that the learned Additional Sessions Judge has found all the three accused-persons guilty of offence under section 302 independently as also under section 302/120-B separately, we are also surprised that learned Judge has given certificate of efficiency to the Investigating Officer when the record shows that the quality of investigation did not deserve to be commended. 38. In the result, the appeal is allowed, the conviction and sentences of the appellants are set aside. The appellants are in Jail, they shall be released forthwith if their detention is not required under any lawful order.Appeal allowed. *******