JUDGMENT 1. - Appellants, Manish Dixit & Sharad Dnakar alongwith co- accused Sanjay Sharma, Rahul Sharma and Shrwan Kumar were placed on trial before the Special Judge, SC/ST (Prevention of Atrocities cases) Jaipur, who by his impugned judgment dated 18.9.95 convicted appellants Manish Dixit and Sharad Dhakar for offences under Sections 302/34, 364/34, read with Section 120-B IPC and sentenced each one of them to life imprisonment with a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo Rl for 6 months on each count. Appellant Manish Dixit was also found guilty for offence under Section 7/25 (1)(a) of the Arms Act and was sentenced to R1 for seven years with a fine of Rs. 1,000/- in default of payment of fine to further undergo Rl for six months. The learned trial Judge also directed that all the learned trial Judge also directed that all the substantive sentences imposed upon the accused appellants shall run concurrently. He, however, acquitted accused persons Sanjay Sharma, Rahul Sharma & Shrawan Kumar. 2. Appellants have filed Cr. Appeal Nos. 501/95 & 502/95 challenging their convictions & sentences while the State of Rajasthan has filed Cr. Appeal No. 514/97 (9/96) against acquittal of the accused appellants for offences under Section 302, 364, 397 IPC and Sections 27 & 28 of the Arms Act and the acquittal of co-accused persons for various offences, for which they were charged. However, this Court by its order dated 6.11.97 granted leave to appeal against acquittal of the accused appellants only and refused the leave to appeal against acquittal of co- accused persons. 3. The learned trial Judge by his impugned judgment also passed strictures against petitioner Devendra Sharma Tehsildar. Who had conducted test identification parade in respect of ornaments alleged to have been recovered at the instance of the accused appellants, against which the petitioner Devendra Sharma has filed Cr. Misc. Petition No. 856/95 under Section 482, Cr.PC. for expunction of those adverse remarks/strictures. 4. Shorn of details, the factural matrix, on which the prosecution case stands runs as under: 5. Gulshan Makhija (deceased) was the manufacturer of gold & silver ornaments and also dealing with purchase & sale thereof by running a jewellery store under the name & style "Star of India''. Situated in Ashoka Hotel Building, near Railway Station, Jaipur. 4. Shorn of details, the factural matrix, on which the prosecution case stands runs as under: 5. Gulshan Makhija (deceased) was the manufacturer of gold & silver ornaments and also dealing with purchase & sale thereof by running a jewellery store under the name & style "Star of India''. Situated in Ashoka Hotel Building, near Railway Station, Jaipur. On 23.2.94 at about 9 P.M. after closing his ship, he along with Michael, who was a tourist from Germany and staying with his wife at the house of the deceased, for his house situated in Shyamnagar, Jaipur, in his newly purchased Maruti Gypsy Car. Gulshan Makhija had also placed bags containing gold and silver ornaments, precious & semi-precious stones, show cases, and accounts books in the said Gypsy. On the same day at about 9.20 PM. Michael came to the house of Gulshan Makhija. He was very much frightened and weeping. He told to PW 1 Kartar Devi and PW 20 Geeta Makhija (mother & sister in-law Bhabhi of the deceased respectively), "Gulshan cheat by gun''. He was also repeatedly using the word, "police" before them, whereupon those ladies apprehended some untoward incident with Gulshan. Geeta Makhija telephoned to her brother in-law. PW 31 Rakesh Makhija, the elder brother of Gulshan Makhija, who was living in a separate house in a nearby colony and informed him whatever she had gathered from Michael. Thereupon Rakesh Makhija immediately reached to Gulshan's house, Michael informed him that he along with Gulshan were coming in Gypsy, that when they reached near Janpath, Shyamnagar near Bansal Hospital, two persons, who had muffled their faces came on a motor cycle and after over taking the Gypsy, they brought the motor cycle in front of them and stopped the Gypsy, and that those persons came near the Gypsy. One of them caught hold of Michael, pulled him down from the Gypsy gave threats to him and forced him to run away. The second person showing a pistol pushed Gulshan from the steering wheel of the Gypsy and made him sit on the side seat. That person sat on the driver seat and after taking a turn, drove away the Gypsy after taking a "U" Turn. The other assailant followed the Gypsy on the motor cycle, Michael also told them that those assailants had a red coloured motor cycle. Thereupon Rakesh Makhija took Michael with him. That person sat on the driver seat and after taking a turn, drove away the Gypsy after taking a "U" Turn. The other assailant followed the Gypsy on the motor cycle, Michael also told them that those assailants had a red coloured motor cycle. Thereupon Rakesh Makhija took Michael with him. Michael showed him the place, where the said incident had taken place. Thereafter they went to police station Sodala, Jaipur. At 9.50 PM. Rakesh Makhija submitted written report Ex.R 38 to PW 40 Himmat Singh SHO, who drew formal F.I.R. Ex.P. 39 arid registered Crime No. 104/94 under Sections 365 & 379, IPC and recorded statements of Rakesh Makhija & Michael Hens under section 161 Cr.RC. He inspected the place of incident of alleged abduction of Gulshan Makhija at Janpath. Shyamnagar at the instance of Rakesh Makhija and prepared site plan Ex.R8. 6. On 24.2.94 at about 8 A.M. some unknown person informed PW 40 Himmat Singh on telephone that a white coloured gypsy was lying abandoned in Dayal Nagar Extension near Gopalpura Bye pass. Thereupon he rushed to the said place and found that a white coloured Gypsy was parked at a low ingratitude on "Khtcha" way. Both the front doors of the Gypsy were closed while, its rear gate was partially opened. Dead body of Gulshan was lying on the front seat having injuries on the head. Blood was oozing out from the front left side door of the Gypsy. The blood, which had fallen on the ground was dried. Two plastic bags having some silver ornaments were lying on the ground on the rear side of the Gypsy. Plastic bags containing silver and gold ornaments were found lying in the Gypsy. The SHO also noticed tyre marks of a motor cycle and partial foot print at a short distance on the rear side of the Gypsy. He, however, did not find tyre marks of other vehicles and shoe prints. Himmat Singh prepared site plan Ex.R 52 of that place. He got photographs of that place and the Gypsy. The dog squad was also pressed into service but with no substantial results. He also got lifted eight chance finger prints from the Gypsy by a team of State FSL. He lifted blood stained soil and control sample from the place, there the Gypsy was found lying deserted vide seizure memo Ex.P 2 and sealed packets thereof. The dog squad was also pressed into service but with no substantial results. He also got lifted eight chance finger prints from the Gypsy by a team of State FSL. He lifted blood stained soil and control sample from the place, there the Gypsy was found lying deserted vide seizure memo Ex.P 2 and sealed packets thereof. From the Gypsy, he seized nine bill books, six cheque books, a tiffin carrier, bag containing the key of the shop of the deceased vide seizure memo Ex.R 3 and five show cases meant for keeping the ornaments vide seizure memo Ex.R4. Various silver ornaments placed in different plastic bags weighing 9.75 kgs. Silver rings weighing 8.485 kgs. silver bajubands, Hansalis & Patadis weighing 14.60 kgs. and silver bangles weighing 9.165 kgs were found lying in the Gypsy, which were seized and sealed by the SHO vide seizure memo Ex.R5. Two gold bracelets and rings, two pendulums, one nose ring, wrist watch and an amount of Rs.3027/- were also taken out from the dead body of Gulshan and those were sealed and seized vide seizure memo Ex.R 6. Himmat Singh got prepared the mould of chance foot print and tyre marks found near the Gypsy vide memo Ex.P. 19. The Gypsy was seized vide memo Ex.R 18. Himmat Singh also prepared inquest report Ex.P.40. 7. On 24.2.94 at 4 PM. Dr. H.L. Bairwa and Dr. B.C. Temani, Medical Jurists of SMS Hospital, Jaipur conducted medico-legal autopsy of the deceased. Vide post mortem report Ex.P 83 they found one punctured wound 1.5 cm x 1.5 cm over the external meatus of right ear canal with blackening, tattooing of just around skin. Collar of abrasion was present, and wound margins were inverted and lacerated with blood oozing out from the wound. On further exploration, the wound continued backward and piercing right temporal bone went posteriorly backward piercing the brain membranes. Inferior surface of right temporal lobe was punctured and a metallic bullet found lodged on left mid occipital lobe of brain. The dura of left superior lateral surface of brain was in tact but haematoma around that was present. The distance from the right temporal bone hole upto left occipital lobe of brain. Where the bullet was found lodged, was 10 cms There was sub-scalp haematoma over right temporal region. Others visceras were healthy. The afore mentioned injuries were ante-mortem in nature. The distance from the right temporal bone hole upto left occipital lobe of brain. Where the bullet was found lodged, was 10 cms There was sub-scalp haematoma over right temporal region. Others visceras were healthy. The afore mentioned injuries were ante-mortem in nature. The doctors opined that the cause of death was coma, with the result of injuries to the skull and the brain by a projectile through a firearm and that those injuries were sufficient to cause death in ordinary course of nature. Dr. Bairwa took out the said metallic bullet from the brain of the deceased and sealed the same in a bottle, various visceras of the dead body were also preserved and sealed in different jars. Blood stained T- shirt, jeans pant, baniyan underwear as also pair of shoes and socks of the deceased were seized and sealed by Manohar Singh ASI PS Sodala vide seizure memo Ex.R7. 8. On 24.2.94, PW 34 Samrath Singh, C.O. took over the investigation of this case. On that day, he examined the witnesses. 9. It is alleged that on the night intervening 8th & 9th March, 1994, some unknown person telephoned to police station Vidhayakpuri, which was attended by PW 38 Kishan Singh SI, that near plot No. 65 is Dhuleshwarbagh colony, one attache case was lying abandoned. However, that person did not disclose his identity. Kishan Singh after making a note of that telephonic message in the Daily diary Ex.R 81 and reached the Dhuleshwarbagh, where he found one attache case and a bag lying on the footpath, which contained ornaments and some papers bearing address of Gulshan Makhija. He, therefore, immediately informed senior officer as also SHO PS Sodala, PW 34 Samrath Singh went there and seized those silver ornaments, which weighed 41.555 kgs. placed them in a cloth bag and sealed those alongwith wooden show case, visiting cards and diaries of Gulshan Makhija and register of "Star of India'' vide seizure memo Ex.R 67. He also got lifted chance prints from the said attache vide memo Ex.P. 68 and prepared site plan Ex.R 69. 10. On 14.3.94 PW 34 Samrath Singh arrested appellant Sharad Dhakar yide arrest memo Ex.R 69. He also got lifted chance prints from the said attache vide memo Ex.P. 68 and prepared site plan Ex.R 69. 10. On 14.3.94 PW 34 Samrath Singh arrested appellant Sharad Dhakar yide arrest memo Ex.R 69. It is alleged that on the same day, Sharad Dhakar in pursuance to his voluntary disclosure statement Ex.P17, in the presence of motbirs after digging "Kutcha" floor of his Universal Automative Garage, took out a white plastic bag, containing gold & silver ornaments and precious & semi- precious stones. PW 34 Samrath Singh placed and sealed all gold ornaments, which were studded with precious & semi precious stones, to wit, "Neelam, Panna, Manak", in packet marked "Ka", and silver ornaments in another cloth packet marked "Kha". Small packets containing diamonds, 14 pcs of "Katela", other precious & semi precious stones in 13 small paper packets & small crystals of diamonds in coloured paper packets were placed and sealed in a separate cloth packet marked "Ga", vide seizure memo Ex.P.23. 11. It is the case of prosecution that on 14.3.94, appellant Sharad volunteered information Ex.P.71 and in pursuance thereof, got recovered vide seizure memo Ex.R72 a red coloured Kawaski Bajaj Motor cycle RJ-14 M 6373 from the house of Vivek Joshi situated in Bani Park, Jaipur. The said motor cycle was sent to the State F.S.L. on 8.6.94 and after serological examination, vide FSL report Ex.P65 it was found that the said motor cycle was stained with human blood having "0" blood group. 12. It may be mentioned here that the blood stained Gypsy, sealed packets of blood smeared soil, control soil pair of shoe with socks, blood stained T-shirt, baniyan, jeans pant, underwear of the deceased were also sent to the State FSL on 17.6.94 and on serological examination the Serologist vide report Ex.P64 intimated that except the control sample of soil, ail other articles were stained with human blood and that the blood smeared soil, T-shirt, pant, and Baniyan were stained with 0 group of blood. However, blood group of pair of shoe with socks and underwear could not be determined due to disintegration. 13. It is the case of prosecution that on 14.3.94 appellant Sharad Dhakar in pursuance to his information Ex.P71 also got recovered one Maruti Car bearing registration No. HRP 8347 vide seizure memo Ex.R73 from the possession and house of Vivek Pangaria. However, blood group of pair of shoe with socks and underwear could not be determined due to disintegration. 13. It is the case of prosecution that on 14.3.94 appellant Sharad Dhakar in pursuance to his information Ex.P71 also got recovered one Maruti Car bearing registration No. HRP 8347 vide seizure memo Ex.R73 from the possession and house of Vivek Pangaria. PW34 Samrath Singh seized the register of visitors from Sanjay Hotel Jaipur for the period from 4.12.93 to 15.3.94 vide seizure memo Ex.R26. Co-accused Rahul Sharma, Shrwan and Sanjay were also arrested by him. Since appellant Manish had absconded and could not be apprehended, on 11.6.94, a challan was filed against accused appellant Sharad Dhakar and co-accused persons while investigation against accused appellant Manish was kept pending under Section 173(8) Cr.PC. 14. Since it was a sensational case pertaining to robbery and murder, various teams of police officers were constituted. Proceedings under Section 82 & 83. Cr.P.C. were initiated against accused Manish and he was declared as proclaimed offender. It is alleged that on 12.7.94 accused appellant Manish was arrested vide arrest memo Ex.R79 from Alka Hostel Connaught Palace, New Delhi by the police party led by Shri Sanjay Kshrotria Circle Officer, PS Manak Chowk, Jaipur and that from his possession one unlicenced revolver having three live cartridges of .455 calibre was recovered vide seizure memo Ex.P.80. The live cartridges were taken out from the revolver and those were seized in two different packets. On 18.7.94, appellant Manish volunteered information Ex.R46 to PW 34 Samrath Singh and in pursuance thereof in the presence of motbirs, he took them to the basement of the house No. 16-B, Mission Compound, Ajmer Road, Jaipur of co-accused Rahul Sharma. At that time, Rahul Sharma was not present and the key of the basement was given by his mother. From the said basement Manish and the appellant got recovered one plastic bag, which was concealed under an old attache case placed on the table & which contained 845 silver rings and 30 studded silver rings weighing in ail about 3 kgs. Those rings were seized and sealed vide seizure memo Ex.R14. 15. It is the case of prosecution that PW 22 Kamlesh Sharma. Those rings were seized and sealed vide seizure memo Ex.R14. 15. It is the case of prosecution that PW 22 Kamlesh Sharma. who was the salesman of the firm "Star of India" correctly identified all the ornaments recovered at the instance of appellant Sharad Dhakar on 9.6.94 and recovered at the instance of appellant Manish on 17.8.94 during test parade conducted by PW 30 Devendra Sharma Sub Registrar cum Tehsildar, Jaipur vide test parade memoes Ex.R 20 and P.21 respectively. It is further the case of prosecution that the sealed packet of the bullet, which was retrieved from the brain of the deceased, during post mortem examination as also sealed packets of the revolver and three live cartridges recovered from the possession of appellant Manish were sent to PW 41 Dr. RS. Manocna Ballistic Expert of the State F.S.L. He after examination vide his report dated 25.8.94 Ex.R51 opined that the said revolver (W/1) was of .455 calibre and was a serviceable firm arm and that its barrel residue indicated that it had been fired. However, definite time of its last fire could not ascertained. He further opined that on stereo comparison and microscopic examination one .455 bullet (6/1) had been fired from the said revolver and that three live cartridges (L 1 to L 3) were live am munitions, which were test fired in the laboratory. 16. It is also the case of prosecution that on 23.2.94 at 8.30 PM. appellant Manish had come to Sanjay Hotel, Jaipur and made entry in Hotel Visitors' register seized vide memo Ex.P26 in the name of one Ramesh Sharma r/o B-5, Vivek Vihar New Delhi and stayed in room No. 104 of the said Hotel. 17. Specimen standard hand-writings of Manish of the matter of entries Ex.R 53 to 61, his admitted writing in the form of his application dated 31.12.1993 Ex.R62, as also the questioned writing of Register entries of Hotel Sanjay were sent to the State F.S.L., to establish the authorship of the disputed writing Q 1 to Q 3 and Q 1/1 in comparison to the standard writing. The Assistant Director (Documents) State F.S.L. vide his report Ex.P.52 opined that the disputed writings marked Q 1 to Q 2 of Sanjay Hotel Register were in the handwriting of the person, who had written standard writing marked A 1 to A 37. 18. The Assistant Director (Documents) State F.S.L. vide his report Ex.P.52 opined that the disputed writings marked Q 1 to Q 2 of Sanjay Hotel Register were in the handwriting of the person, who had written standard writing marked A 1 to A 37. 18. After completion of the investigating, supplementary charge sheet was filed against appellant Manish in the Court of the concerned Magistrate, who in turn committed the case to the Court of Sessions, Jaipur, which was transferred to the files of the learned trial Judge. 19. Appellants and co-accused persons denied their indictment and claimed trial. To prove its case, the prosecution examined as many as 41 witnesses. In their statements under Section 313, Cr.PC. the appellants generally denied all the circumstances appearing against them in the prosecution evidence. They denied to have given either any information to the investigating officers or to have got recovered any articles at their instances However, they asserted that their signatures were procured on blank papers by the investigating officers forcibly after using third degree measures. Appellant Manish admitted that specimen writings were got written by him at the instance of police and claimed that he did not make the disputed entry on 23.2.94 in the Register of Sanjay Hotel in the psuedo name of Ramesh Sharma. He also denied his arrest and alleged recovery of the revolver and live cartridges from his possession in Delhi. He asserted that on 27.2.94 he was called by the police and was let off. Again on 28.2.94, 3.3.94 and 4.3.394 he was called at PS Sodala, where he was beaten by the police and was let off. On 5.3.94, he took treatment in the hospital. Again on 5.3.94, he was called by the police and was kept there till night of 6.3.94 and thereafter he was permitted to go. The appellants claimed that they have been falsely implicated. However, in their defence, they did not examine any witness. After trial, the learned trial Judge acquitted co-accused Sanjay Sharma, Rahul Sharma and Shrwan Kumar and he found the appellants guilty and sentenced them in the manner indicated above. Hence D.B. Cr. Appeals No. 501 and 502 of 1995. 20. The State has filed D.B. Cr. Appeal No. 9/96 (514/97) against acquittal of the appellants and other co-accused persons. Hence these appeals. 21. Applicant Devendra Sharma. Tehsildar (PW 30) has filed Cr. Misc. Hence D.B. Cr. Appeals No. 501 and 502 of 1995. 20. The State has filed D.B. Cr. Appeal No. 9/96 (514/97) against acquittal of the appellants and other co-accused persons. Hence these appeals. 21. Applicant Devendra Sharma. Tehsildar (PW 30) has filed Cr. Misc. Petition No. 856/95 under section 482 Cr.PC. for expunction of certain remarks passed by the learned trial Judge against him. 22. Since all these matters emerge out from the impugned judgment, those are being disposed of by this common judgment. 23. This Court vide its order dated 19.12.96 partly allowed application under Section 367 and 391 Cr.RC. filed by the learned Pubiic Prosecutor and Shri R.K. Agrawal, the learned counsel for appellant Sharad Dhakar and ordered for taking further evidence. In pursuance thereof, PW 29 Mool Chand PW 33, Satyendra Singh and PW 35 Umaid Singh were further examined and cross examined while statements of PW 42 Mahendra Singh Head Mohrir, PW 43 Pooran Singh Constable, PW 44 Bhopal Singh of PS Sodala PW 45 Laxman Singh HC Incharge Malkhana PS Manak Chowk and PW 46 Prabhu Dayal HC Incharge Malkhana PS Sastri Nagar were recorded under Section 311, Cr.P.C. Further statements of appellants Manish and Sharad Dhakar were recorded under Section 313 Cr.RC. wherein they denied the circumstances appearing against them in the statements of the aforementioned prosecution witnesses. However, the appellants did not examine any witness in their defence even in this Court. 24. We have heard Shri S.R. Bajwa, learned Sr. Advocate for appellant Manish Dixit, Shri R.K. Agrawal, learned counsel for appellant Sharad Dhakar, Shri S.R. Yadav, the learned Public Prosecutor, Shri R.N. Khandelwal, the learned counsel for the complainant and Shri A.K. Gupta learned counsel for PW 30 Devendra Sharma, at length, and have carefully perused the relevant record in extenso. 25. Assailing the impugned judgment, the learned counsel for both the appellants have strenuously canvassed that as per prosecution case, Michael Hens was last seen with the deceased; and that he was the sole eye witness of the alleged abduction and robbery, but surprisingly, the prosecution has deliberately with held and did not examine him. On the other hand, his complicity in the crime can not be ruled out. Rather his abrupt disappearance and not rendering co-operation in the fair investigation of the case strengthens his participation in the crime. On the other hand, his complicity in the crime can not be ruled out. Rather his abrupt disappearance and not rendering co-operation in the fair investigation of the case strengthens his participation in the crime. Even the site plan Ex.P.8 of the place, where from the alleged abduction took place, was prepared by PW 40 Himmat Singh SHO, not at the instance of Michael Hens but at the instance of PW 30 Rakesh Makhija, who was admittedly not an eye witness of the said incident. Thus, site plan Ex.P.8 being based on hear-say evidence, is not admissible in evidence. Non-examination of material witness Michael Hens raises a strong adverse inference against the prosecution story and possibility of his complicity in the crime can not be ruled out. They have asserted that there is no legal evidence on record to prove the story of abduction of Gulshan Makhija. The statements of PW 1 Kartar Kaur, PW 20 Geeta & PW 31 Rakesh as regards their having been informed by Michael Hens about the alleged abduction of the deceased are neither relevant nor admissible in evidence. On the other hand, their testimony is based on hear-say evidence, which is inadmissible in evidence and the learned trial Judge has committed a patent illegality in relying on their statements. Similarly, there is no direct evidence about the alleged murder of the deceased and the entire case hinges on circumstantial evidence. 26. Their next thrust of argument is that the material collected during investigation and the result of the investigation have to be translated into legal evidence during trial and that the gravity of the offences cannot in any way be a circumstance sufficient to hold the appellants guilty because no can be convicted on the basis of mere suspicion, howsoever strong it may be. 27. Shri R.K. Agrawal, the learned counsel for Sharad Dhakar has vehemently contended that in this case, the investigation has not been conducted in an honest, upright and fair manner. There is no evidence either direct or indirect to establish any criminal conspiracy or common intention with appellant Manish to commit the crime. That the learned trial Court has already held that the recovery of a Fiat car from the possession of Vivek Pangaria was meaningless and the same did not connect appellant Sharad with the alleged crime. There is no evidence either direct or indirect to establish any criminal conspiracy or common intention with appellant Manish to commit the crime. That the learned trial Court has already held that the recovery of a Fiat car from the possession of Vivek Pangaria was meaningless and the same did not connect appellant Sharad with the alleged crime. Similarly, the alleged recovery of motor cycle at the instance of Sharad is of no consequence, because an information memo Ex.P71 only the information to the extent leading to the recovery of the said motor cycle is admissible in evidence and the remaining part thereof is not admissible in evidence. In recovery memo Ex.P72 of the motor cycle, there is no mention that the said motor cycle was blood stained. Admittedly, the said motor cycle was neither wrapped by a cloth by the investigating officer nor the same was sent to the State Forensic Science Laboratory in a sealed condition. On the other hand, the said motor cycle remained lying in open at PS Sodala and was sent to FSL as late as on 8.6.94. Hence the possibility of putting blood on the motor cycle by the investigating agency during the period interregnum cannot be ruled out. Moreover, the prosecution did not examine Vivek Joshi from whose possession the said motor cycle was recovered, nor the blood group of Vivek Joshi, who is owner of the motor cycle, was ascertained Even the tread of the motor cycle tyre differed from the tyre mould allegedly collected from the place of incident during investigation. In such circumstances as per the FSL report Ex.P85, the alleged recovery of motor cycle does not implicate Sharad Dhakar with the crime. The learned trial Judge has, therefore, committed grave error in relying on such unproved circumstances. 28. Shri R.K. Agrawal pointed out that the investigating officer has miserably failed to ascertain the exact quantum and details of the looted property because in the F.I.R. there is no such mention nor any list of the looted articles was later on filed by either PW 31 Rakesh Makhija,PW 20 Geeta Makhija, or PW 1 Kartar Kaur (the brother, Bhabhi and mother respectively of the deceased). The investigating officer also did not care to produce the books of accounts or stock registers, work register, files of vouchers of the firms M/s "Star of India" or "Alibaba". The investigating officer also did not care to produce the books of accounts or stock registers, work register, files of vouchers of the firms M/s "Star of India" or "Alibaba". According to him, a huge amount of ornaments were found lying in the Gypsy. Even the gold ornaments, which the deceased was putting on, were found in tact, besides that a large quantity of ornaments was found lying abandoned near Dhuleshwar garden. In such circumstances, the prosecution has totally failed to prove the quantum as also details of. the ornaments/articles alleged to have been looted. Had the assailants any intention to loot the deceased why such a huge quantum of ornaments and the gold articles were left lying in the Gypsy? The prosecution has also miserably failed to establish any motive for the alleged crime. The alleged recovery of the ornaments and the precious & semi-precious stones from the automotive garage has not been proved beyond reasonable doubt because there are material contradictions in the testimony of the motbirs and the investigating officer. The servant, who was found at the garage has also not been examined. In the recovery memo Ex.R23, It has not been mentioned that paper packets (Purias) containing precious & semi precious stones bore name Rakesh Makhija written thereon, while PW 20Geeta and PW 31 Rakesh, who have identified those ornaments and stones etc. during trial have stated that on those paper packets name of Rakesh was scribed. Shri R.K. Agrawal urged that the alleged test identification parade of the articles recovered at the instance of Sharad Dhakar suffers from material and inherent infirmities. As per statement of PW 30 Devendra Kumar Sub-Registrar & Tehsildar, no articles were mixed or mingled with articles alleged to have been recovered and that the ornaments brought for mixing or mingling were kept separately in different lots. The learned trial Judge has also not placed any reliance on the tests parade. According to him, the test identification parade conducted by PW 30 Devendra Kumar was a mere empty formality and the investigating agency was kept free and open to fabricate the evidence with an intention to any how book the accused appellants. Shri Agrawal has asserted that there is not a fringe of legal evidence against Sharad Dhakar to connect him with the crime and that no presumption can be raised against him under Illustration (a) of Section 114, Evidence Act. Shri Agrawal has asserted that there is not a fringe of legal evidence against Sharad Dhakar to connect him with the crime and that no presumption can be raised against him under Illustration (a) of Section 114, Evidence Act. However, in the alternative, he has contended that if the recovery at the instance of Sharad Dhakar is believed even then he cannot be convicted for offences under Section 302, 365 & 397, IPC, and that at the worst the offence proved against him cannot travel beyond the offence punishable under Section 411, IPC. 29. Shri S.R. Bajwa the learned counsel for Manish Dixit vehemently contended that admittedly, the latter was repeatedly called by the investigating agency immediately after the occurrence to the police station till 6.3.94 and despite interrogation he was not arrested, and was allowed to go. There is not an iota of evidence to prove that Manish was declared as a proclaimed offender. He asserted that Manish was not arrested in Delhi and that a fake recovery of revolver and three live cartridges from his possession has been shown by the police. He pointed out that motbirs PW 6 Rajendra, PW 9 Vijay Kumar, PW 19 Lalaram have deposed that on 24.2.94, they had seen a revolver lying in the Gypsy. Hence the possibility cannot be ruled out that the said revolver was later on planted by the police and a phonex and false recovery of revolver and live cartridges from the possession of Manish has been effected. He further pointed out that as per the prosecution case, a bullet was taken out from the skull of the deceased by the doctors on 24.2.94 but neither any seizure memo was prepared nor there is any entry in the rojnamcha of PS Sodala to prove that the said bullet was deposited in the Malkhana nor the prosecution has examined Manohar Singh ASI, who is alleged to have brought the said unmarked bottle containing bullet from the hospital. It is alleged that on 26.2.94 that bullet was sent to the State FSL through Manohar Singh ASI, but has not been examined by the prosecution. There is no evidence as to in whose custody, the said bottle containing bullet remained in the FSL from 26.2.94 to 28.4.94 and that its seals remained in tact. It is alleged that on 26.2.94 that bullet was sent to the State FSL through Manohar Singh ASI, but has not been examined by the prosecution. There is no evidence as to in whose custody, the said bottle containing bullet remained in the FSL from 26.2.94 to 28.4.94 and that its seals remained in tact. As per the FSL report EX.P 63, a packet containing bullet marked B/1 was examined by the Ballistic Expert, who opined that calibre of bullet (B/1) was .455, and that the same appeared to have been fired by the recovered .455 revolver. As per the prosecution case, Banshidhar ASI had brought the packet of the said bullet from FSL to PS Sodala on 1.6.94 but he has also not been examined by the prosecution. Again on 22.7.94 PW 11 Vijay Kumar is alleged to have deposited the said bullet in the FSL from PS Sodala, which was returned there from on 31.8.94, but there is no evidence to prove as to how he had brought the said bullet from FSL to PS Sodala. Again, there is no evidence to prove that from 22.7.94 to 31.8.94, the seals of the packet containing the said bullet were in tact. As per FSL report Ex.P66, Shri V.N. Mathur, Asstt. Director Serologist after conducting serological examination of the blood stained bullet, had opined that the same was stained with human blood having "O" group. Shri Bajwa contended that the said Serologist had forwarded the same to the ballistic cell for examination on 23.5.95. There is no evidence to prove that the seals of the packet containing the said bullet remained in tact and those were not tampered with till the same was again sent to the State FSL along with packets of the Revolver and three live cartridges on 22.7.94. Thus, important fink evidence in this regard is missing. According to him, the ballistic expert report Ex.P51 is shorn of any details because no data have been given by PW 41 Dr. RS. Manocha, Ballistic Expert nor he has submitted the magnified/enlarged photographs of the striation marks found on the bullet. In such circumstances, the ballistic expert's report Ex.R51 cannot be accepted to be correct. According to him, the ballistic expert report Ex.P51 is shorn of any details because no data have been given by PW 41 Dr. RS. Manocha, Ballistic Expert nor he has submitted the magnified/enlarged photographs of the striation marks found on the bullet. In such circumstances, the ballistic expert's report Ex.R51 cannot be accepted to be correct. Shri Bajwa has urged that the said bullet (B/1) is a document within the meaning of Section 3 of the Evidence Act and since the prosecution has not produced the said bullet in the trial Court and as such failed to adduce primary evidence nor any permission was given by the Court to adduce secondary evidence in this behalf. In such circumstances, the Ballistic expert's report Ex.R51 is not a primary evidence but is secondary evidence, which is clearly not admissible in evidence, Shri Bajwa has asserted that the prosecution has palpably failed to prove beyond reasonable doubt that the said bullet was fired through the revolver alleged to have been recovered from the possession of the accused appellant Manish. 30. Shri Bajwa has contended that the alleged recovery from the basement of Rahul Sharma (acquitted co-accused), at the instance of Manish Dixit is concocted and false and that the same cannot be believed. The trial Court has already held that the test identification parade conducted by PW 30 Devendra Kumar was inherently defective. Similarly, information memo Ex.R47 alleged to have been given by appellant Manish pointing out the places of occurrence is meaningless, because the police had already come to know about those places. He submitted that the alleged information of appellant Sharad Dhakar vide information memo Ex.R71 to the effect that, "Maruti Car HRP 8347 Bajrang Kali Jo Dinank 24.2.94 Ko Ratri mere pass thi, jise Ratri mein Manish Dixit ne chalakar kaam mein Ii thi, meri jaankari mein hai....", is clearly not admissible in evidence and that the same does not prove any complicity or involvement of appellant Manish in the crime. He further submitted that the prosecution has also failed to prove any motive for the murder of the deceased. According to him, the learned trial Judge has not correctly discussed, analysed, and assessed the evidence adduced in this case, and has thus committed patent illegality of fact and law in convicting appellant Manish. He further submitted that the prosecution has also failed to prove any motive for the murder of the deceased. According to him, the learned trial Judge has not correctly discussed, analysed, and assessed the evidence adduced in this case, and has thus committed patent illegality of fact and law in convicting appellant Manish. He has also contended that on the basis of such a delayed recovery of ornaments, no presumption can be drawn against accused appellant Manish under Section 114 the Evidence Act. 31. On the other hand, Shri S.R. Yadav, the learned Public Prosecutor and Shri R.N. Khandelwal, the learned counsel for the complainant have vehemently urged that immediately after the incident, Michael Hens, who was badly frightened and weeping had rushed to the house of the deceased and informed PW 1 Kartar Kaur, PW 20 Geeta and PW 31 Rakesh about the incident of abduction and those facts were connected with the issue forming part of the same transaction and as such those were relevant under Section 6 of the Evidence Act as res justae. Therefore, the evidence of these three prosecution witnesses is not based on hear-say evidence and the same is admissible in evidence. The testimony of these witnesses gives details of the incident. According to Shri Yadav and Shri Khandelwal, minor discrepancies in the statements of. the motbir witnesses have to be ignored and that various recoveries at the instances of these appellants have been well proved by the prosecution evidence. The appellants have not claimed those recovered ornaments. On the other hand, those ornaments have been correctly identified by PW' 20 Geeta and PW 31 Rakesh and other PWs during trial in the Court. These PWs have deposed stated that those ornaments belonged to the deceased. Moreover, appellants have not given any explanation as to how they come in possession of those ornaments, and in such circumstances, the learned trial Court has not committed any illegality in raising adverse presumption Under section 114 Evidence Act against both the appellants that they had committed murder of the deceased and looted those ornaments. 32. Moreover, appellants have not given any explanation as to how they come in possession of those ornaments, and in such circumstances, the learned trial Court has not committed any illegality in raising adverse presumption Under section 114 Evidence Act against both the appellants that they had committed murder of the deceased and looted those ornaments. 32. Shri R.N. Khandelwal admitted that in the recovery memo of the motor cycle there is no mention about the blood stains thereon but urged that it may be just possible that the blood on the motor cycle might have been in a very small quantity, which could not have been noticed by the investigating officer by naked eye but since the Serologist noticed blood and found the same of human origin having "0" group of blood. He pointed out that the same group of blood has also been found by the Serologist on the shirt, Jeans, Baniyan etc. of the deceased. Thus, it stands well proved that the recovered motor cycle was the same, which was used by the appellants for committing the crime. He has supported the impugned judgment and reiterated the reasoning's incorporated therein. 33. Shri S.R. Yadav the learned Public Prosecutor has contended that the learned trial Court has committed an illegality in acquitting the appellants for the offences under Sections 365, 397 & 302, IPC and that the quantum of the punishment awarded to them appellants is also inadequate. 34. Shri A.K. Gupta the learned counsel for PW 30 Devendra Kumar, Tehsildar cum Sub-Registrar submitted that there is no material inconsistency in the statement of Devendra Kumar given during trial and the contents of the test identification parade memoes Ex.P20 & P21 and the orders passed by him on applications Ex.R28 and R29. He claimed that there is no valid reason to hold that Devendra Kumar has deliberately or falsely deposed before the trial Court or that he did not take necessary precautions while conducting the said test parades. He urged that in view of this the strictures passed and adverse observations made by the trial Judge in the impugned judgment against PW 30 Devendra Kumar are unjustified, unwarranted and uncalled for, which deserve to be expunged. 35. We have given our anxious and thoughtful consideration to the rival submissions. Direct Evidence As per written report Ex.P38 (FIR Ex.P.39) the alleged incident, which had taken place on Janpath Shyamnagar. 35. We have given our anxious and thoughtful consideration to the rival submissions. Direct Evidence As per written report Ex.P38 (FIR Ex.P.39) the alleged incident, which had taken place on Janpath Shyamnagar. Jaipur was witnessed by Michael Hens, who immediately after the occurrence came to house of deceased and informed PW 1 Kartar Devi and PW 20 Geeta Makhija and thereafter to PW 31 Rakesh Makhija about the incident. Michael Hens, as per the statement of PW 43 Himmat Singh SHO, had also accompanied Rakesh Makhija to PS Sodala after the incident and that his statement under Section 161 Cr.P.C. was recorded. The name of Michael Hens was also included in the list of calendar of witnesses annexed with the charge sheet but the prosecution deliberately did not examine this sole eye witness of the incident of the alleged abduction of the deceased nor has given any plausible explanation for his non examination. It is true that Michael Hens was a citizen of Germany, but not a fringe of evidence has been adduced by the prosecution as to when did he leave India and whether he had co-operated in the investigation of the case or not or as to why any application for examining him on commission was not filed? It is surprising to note that even an application under section 33 of the Evidence Act for tendering his police statement recorded under section 161 Cr.PC. in evidence was not filed. As per statement of PW 43 Himmat Singh, as many as eight chance prints were lifted vide memo Ex.P. 10 from various parts of the Gypsy, wherein the dead body of the deceased was found lying near Dayal Nagar extension Gopalpura Byepass road but the investigating agency did not care to procure finger prints of Michael Hens or of appellants Sharad & Manish and did not send those to the or Finger Print Expert for comparison to ascertain as to whether those chance prints tallied with finger prints of any of the afore mentioned persons, to rule the possibility that Michael Hens was not involved in the crime and to establish that appellants were the assailants and had participated in the crime. 36. 36. PW 1 Kartar Devi, PW 20 Geeta Makhija and PW 31 Rakesh makhija have deposed that Michael Hens was a family friend of the deceased, that they were known to each other and when the deceased used to visit Germany, he used to call on Michael and that Michael along with his wife was staying in the house of the deceased. Despite this, Michael did not co-operate in the investigation. He did not give any description of the assailants nor give details about appearance, height or mark of identification of the two assailants, who had come on a red coloured motor cycle. Even Himmat Singh, who had initially investigated this case did not make serious efforts to find out about the identity of those assailants. As per the FIR, the alleged incident had taken place on 23.2.94 at about 9.15 PM. on Janpath, Shyamnagar near Bansal Hospital, which is a densely populated area. Thereafter the dead body of Gulshan Makhija was found lying in a Gypsy near Dayal Nagar Extension, which is also a well populated locality. It is really very very strange that the investigating officer did not make substantial efforts to enquire from the inhabitants of these localities as to whether they had seen or noticed any commotion regarding the abduction incident or had heard any bang of a revolver/pistol. Michael Hens, therefore, being the sole eye witness of the incident, was a most material witness in this case but the prosecution deliberately did not examine him, which raises strong adverse inference against it and makes the prosecution story highly doubtful. 37. In Habib Mohd. v. State of Hyderabad, ( AIR 1954 SC 51 ) it has been emphasised that it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that if produced he would not speak truth, and in any case, the court would have been well advised to exercise its discretionary powers to examine that witness. It has been observed that by non production of such a material witness not only an adverse inference arises against the prosecution case in view of Illustration (g) of S. 114, Evidence Act, but the circumstance being with held from the Court casts serious reflection on the fairness of the trial. 38. It has been observed that by non production of such a material witness not only an adverse inference arises against the prosecution case in view of Illustration (g) of S. 114, Evidence Act, but the circumstance being with held from the Court casts serious reflection on the fairness of the trial. 38. In Narain v. State of Punjab, ( AIR 1959 SC 484 ) , it has been reiterated that witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, and that the test, whether a witness is material for the prosecution case is not whether he would have given evidence in support of the defence. The test is, whether a witness is so essential or not, would depend upon whether he would speak truth to the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not, however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence and if the prosecution fails to produce material witness then adverse inference arises against it and makes the prosecution case doubtful. 39. In the case on hand Michael Hens was the sole eye witness of the alleged incident of abduction of the deceased. In such circumstances, it was the bounden duty of the prosecution to have examined him and his non production clearly raises a strong adverse inference against the prosecution case. Evidence as Res Gestae40. Shri S.R. Yadav, learned Public Prosecutor assisted by Shri R.N. Khandelwal has strongly canvassed that even if Michael Hens has not been examined still then, immediately after the incident, whatever, he had said to PW 1 Kartar Devi and PW 20 Gita Makhija and thereafter to PW 31 Rakesh Makhija is relevant and admissible in evidence under Section 6, Evidence Act. wherein rule of res gestae has been incorporated and that these three witnesses have given details of the incident of the alleged abduction of the deceased, which immediately after the incident, was disclosed by Michael Hens to them.41. Section 6 of the Evidence Act runs as under: "6. wherein rule of res gestae has been incorporated and that these three witnesses have given details of the incident of the alleged abduction of the deceased, which immediately after the incident, was disclosed by Michael Hens to them.41. Section 6 of the Evidence Act runs as under: "6. Relevancy of facts forming part of same transaction.-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." Illustration (a) to this section is detailed infra : A is accused of the murder of B by beating him. Whatever was said or dope by A or B or the by-standers at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.42. A bare reading of Section 6, and illustrations appended there to indicates that what is admissible under S. 6 are facts, which are connected with the fact in issue as "part of the transaction" under investigation. In order that different acts may constitute the same transaction they must be connected by proximity of time, unity or proximity of place, continuity of action and community of purpose or design. Whether the connection is sufficient to make a fact or facts part of the transaction or is too remote must always depend on the circumstances of each case. There are many incidents however, which, though not strictly constituting a fact in issue, may yet to be regarded as forming a part of it, in the sense that they closely accompany and explain that fact. In testifying to the matters in issue, therefore, witnesses must state them not in their barest possible form, but with a reasonable fitness of detail and circumstance. These constituents or accompanying incidents are said to be admissible as forming part of the res gestae. In testifying to the matters in issue, therefore, witnesses must state them not in their barest possible form, but with a reasonable fitness of detail and circumstance. These constituents or accompanying incidents are said to be admissible as forming part of the res gestae. When they consist of declarations accompanying an act they are subject to three qualifications : firstly they must be contemporaneous or almost contemporaneous with the fact in issue and must not be at such an interval as to allow of fabrication or to reduce them to the were narrative of a past event, though this is subject to apparent exceptions in the case of continuing facts; secondly they must relate to and explain the act they accompany, and not independent facts prior or subsequent thereto; and though admissible to explain, they are not always taken as proof of the truth of the matters stated, that is, as hearsay. Thirdly acts, declarations and incidents accompanying or explaining the transaction of facts in issue or which themselves constitute the facts or transaction in issue are considered as part of the res gestae and admitted as original evidence and not hearsay. Thus, the exclamations, statements and complaints of an injured party or the complaint of a raped woman immediately before, during or after the occurrence are relevant. These spontaneous declarations accompanying an act are sometimes called "verbal acts". These declarations in order that may be admissible as res gestae, should be contemporaneous or almost contemporaneous with the transaction in issue, i.e. the interval should not be such as to give time or opportunity for fabrication and they should not amount to a mere narrative of a past occurrence. Thus, the statements of the by standers are admissible as part of the transaction as per illustration (a) to section 6. The statement of law in section 6 is usually known as the rule of res gestae, the essence of which doctrine is that the facts which though are not in issue are so connected with the fact in issue as to form part of the same transaction and thereby become relevant like the fact in issue. Such declarations roughly speaking are exceptions to the Hearsay rule. The obvious ground of admission of the evidence in illustration (a) Is the spontaneity and immediacy of the act or declaration in question. The facts deposed must form part of the transaction. Such declarations roughly speaking are exceptions to the Hearsay rule. The obvious ground of admission of the evidence in illustration (a) Is the spontaneity and immediacy of the act or declaration in question. The facts deposed must form part of the transaction. In other words the statement sought to be admitted must have been made contemporaneously with the fact or immediately after it and not at such interval as to allow fabrication or to reduce the statement to a mere narrative of past events.43. In the instant case in written report Ex.R38, PW 31 Rakesh Makhija clearly mentioned that on that day at about 9.15 RM. he received the telephone of his Bhabhi (PW 20 Gita Makhija) that Michael had come to their house running and informed that when he (Michael) and Gulshan (deceased) were coming from the shop "Star of India" on a Gypsy and had reached Janpath road Shyam Nagar near Bansal Hospital, two persons, with muffled faces came on a motor cycle and stopped their Gypsy, that one of them got down from the motor cycle and came near the Gypsy, caught hold of him (Michael) and pulled him down from the Gypsy, and threatened and asked him to run away, while the second motor cyclist after showing a pistol pushed away Gulshan Makhija from driver's seat, set down and after sitting in the Gypsy and drove away the same taking a "U" turn and the second assailant on followed the Gypsy on the said motor cycle. PW Rakesh Makhija further mentioned in his report that thereupon he immediately went to deceased's house, where on his enquiry, Michael narrated him the aforesaid facts. But, on the other hand, PW20 Gita Makhija deposed that on the ill-fated night at about 9.15 RM. Michael came to her house, that at that time, he was very much frightened and was shouting, "Gulshan cheat by gun" and "police - police". Thereupon she immediately telephoned Rakesh Makhija, who came to her house and that on his enquiry, Michael had narrated the said incident. PW 1 Kartar Devi has also deposed likewise. She stated that when Michael had came to their house alone he was in a frightened condition, that she & Gita asked him about whereabouts of Gulshan and that thereupon Michael uttered in English "cheat gun" & "police poiice". Michael had also put his hand on his ear. PW 1 Kartar Devi has also deposed likewise. She stated that when Michael had came to their house alone he was in a frightened condition, that she & Gita asked him about whereabouts of Gulshan and that thereupon Michael uttered in English "cheat gun" & "police poiice". Michael had also put his hand on his ear. Thereupon, Gita Makhija telephoned Rakesh Makhija, who arrived there within five minutes and on enquiries made by him, Michael had given details of the said incident. Thus PWs 1 and 20 have not corroborated the statement of PW 31 Rakesh Makhija and their testimony is clearly inconsistent with his statement. PWs 1 & 20 are ladies and not conversant with english language. There is no valid reason to disbelieve their testimony. It is thus abundantly apparent that Michael, on the enquiry made by Rakesh had blurted out the facts of the said incident afterwards.44. Admittedly, Michael was a German national. On the ill fated night, he came running to the house of Gulshan at about 9.30 P.M. and at that time, he simply uttered words, "Gulshan cheat by gun" & "police - police" and had also kept his hand on his ear. At that time, he was frightened. Gita Makhija informed Rakesh Makhija about the same, whereupon the latter reached to the house of Gulshan within five minutes and on his enquiry, Michael had narrated the details of the incident. Therefore, the statement or declaration made by Michael immediately after the incident to PWs Smt. Kartar Devi & Gita Makhija as also his action of putting hand on his ear were made contemporaneously without any premeditation. Those were spontaneous utterances and gestures which formed part of the same transaction and in view of illustration (a) to Section 6 of the Evidence Act, only those utterances namely "Gulshan cheat by gun" & "police - police" and his gestures by putting hand on his ear only are relevant and admissible in evidence as res gestae but the subsequent narration made by Michael about details of the incident of abduction on the enquiry by Rakesh Makhija is clearly a narrative statement of a past transaction or event, and the same is not admissible as part of res gestae.45. Shri R.N. Khandewal has placed reliance on the decision in Sawai Das v. State of Bihar (1974 Cr.L.J. 664) , wherein the appellant, his father and mother were charged for murder of his wife. Immediately after the wife was pushed inside the room and her cries "Bachao - Bachao" came from inside the room, her children were heard crying and uttering words that their mother was either being killed or had been killed. There was also a maid servant present in the verandah outside the room and her statement was recorded under Section 164 Cr.RC. which was brought on record. But the children and maid servant were not produced as witnesses in the trial Court. It was held that in the view that the evidence of witnesses about what children said or did was admissible under Section 6, the children may not have been examined under Section 540 (old Cr.RC.); but the omission to produce the maid servant, whose statement under S. 164 could be used to corroborate or contradict her if she had appeared as a witness, entitled the accused to ask the Court to give him benefit of presumption under Section 114 Illustration (g) of the Evidence Act. Apparently such are not the facts of the case at hand. Michael immediately after the incident rushed to Gulshan's house and there, he had uttered the words. "Gulshan cheat gun" & "police-police" and made his gestures by putting his hand on the ear to PW 1 Kartar Devi and PW 20 Geeta Makhija and he did not narrate anything else or gave details of the said incident of abduction. Therefore, only afore mentioned narration and gestures is admissible in evidence under the rule of res gestae. The prosecution even did not get Michael's police statement proved and exhibited during trial. The prosecution also did not examine him. In such circumstances, Sawai Das's case instead of helping the prosecution rather assists the accused appellants.46. Next case cited by Shri Khandelwal is- Jetharam v. State of Rajasthan, ( AIR 1979 SC 22 ) . It was a murder case. Some witnesses stated that they saw the accused firing gun and also heard from other persons immediately after the occurrence that the accused was the assailant. It was held that their evidence was admissible under Section 6 of the Evidence Act. Apparently facts of Jetharam's case are clearly distinguishable.47. It was a murder case. Some witnesses stated that they saw the accused firing gun and also heard from other persons immediately after the occurrence that the accused was the assailant. It was held that their evidence was admissible under Section 6 of the Evidence Act. Apparently facts of Jetharam's case are clearly distinguishable.47. Next case cited by Shri Khandelwal is Thakurdas v. State of H.R (1992 Cr.LJ HP 2415) , where according to the witnesses, a woman, who was present in the room in which wife of accused was burning was found immediately thereafter running in the Bazar crying for help and informing them that the accused had set his wife on fire by pouring kerosene oil on her. It was held that woman's coming to the Bazar and crying for the help for the reasons given by her can be safely classified as facts so connected with the fact in issue namely, accused having poured kerosene oil on his wife and set her on fire, as to form part of the same transaction and the statement of witnesses was clearly relevant under S. 6. We respectfully agree with the application of S. 6 of the Evidence Act by the Himachal Pradesh High Court, but the facts of Thakurdass's case are poles apart with those of the instant case.48. Another case relied on by the prosecution is of Om Singh v. State of Rajasthan (1997 Cr.LJ 2419 DB) , wherein eye witnesses substantially stated that the accused killed the deceased. Two witnesses reached the place of occurrence immediately after the incident. It was held that the statements of those witnesses deriving material knowledge about the incident even from eye witness was relevant as forming parts of res gestae. As mentioned earlier only utterances and gestures made by Michael to PWs Kartar Devi & Geeta Makhija could form part of res gestae and no narration and details of the incident of the alleged abduction on an enquiry made by PW31 Rakesh Makhija, which are clearly narrations of the past events, are relevant and admissible in evidence under section 6 Evidence Act.49. Therefore, we are of the considered view that narrations subsequently made by Michael to Rakesh Makhija, which are incorporated in the F.I.R. Ex.R38 are neither spontaneous nor contemporaneous and those are not relevant and admissible in evidence under Section 6 of the Evidence Act. SITE PLAN EX.R850. Therefore, we are of the considered view that narrations subsequently made by Michael to Rakesh Makhija, which are incorporated in the F.I.R. Ex.R38 are neither spontaneous nor contemporaneous and those are not relevant and admissible in evidence under Section 6 of the Evidence Act. SITE PLAN EX.R850. PW 40 Himmat Singh stated that in the morning of 24.2.94 he inspected the site of the alleged abduction on Janpath Road Shyam Nagar, and prepared plan Ex.R8 at the instance of Rakesh Makhija. He failed to assign any reason as to why he did not prepare the site plan Ex.R8 at the instance of Michael, who was the sole eye witness of the said incident. Since Rakesh Makhija was admittedly not an eye witness, the site plan Ex.R8 is clearly hit by provisions of Section 162 Cr.RC. and inadmissible in evidence. Himmat Singh also did not notice any tyre marks or any blood stains.51. It has been held in Bhakhar Ram v. State of Rajasthan (1994 R.Cr.C. 594) that it is a well crystallised principle of law that the contents of the site plan or memo thereof cannot be taken to be true or proved until and unless the person, who inspects the site or the motbir in whose presence the site is inspected specifically deposes as to what he had seen and observed about the peculiar and significant features regarding the place of occurrence, because, it is only the personal knowledge of the witness, which he acquires while inspecting the site, which is admissible in evidence.52. It is also pertinent to note that in site plan Ex.R 8 it has been specifically mentioned by the Investigating Officer that the said place of incident was shown by Michael to Rakesh Makhija. Therefore, site plan Ex.P 8 is based on hearsay evidence and the same is hit by provisions of Section 162 Cr.RC. and as such, is not admissible in evidence. Thus, there is no legal evidence on record to prove the place and the story of abduction.53. It may be mentioned here that result of the investigation can never be a legal evidence. In Vijender etc. v. State of Delhi (JT 1997 (3) SC 131) , it has been held that the result of the investigation under Chapter XII of Cr.RC. It may be mentioned here that result of the investigation can never be a legal evidence. In Vijender etc. v. State of Delhi (JT 1997 (3) SC 131) , it has been held that the result of the investigation under Chapter XII of Cr.RC. is a conclusion that an investigating officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under Section 190 (1)(b) Cr.PC. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The Trial Court is then required to base its conclusion solely on the evidence adduced during the trial, and it cannot rely on the investigation or the result thereof. The same principle has been reiterated in Shri Kaptan Singh v. State of M.P., (JT 1997 (5) SC 35) .54. In the instant case, the learned trial Judge committed an illegality in holding that details of the incident given by Michael to PW 31 Rakesh Makhija Kartar Devi and Gita Makhija were relevant and admissible in evidence under Section 6 of the Evidence Act and also placed reliance on the conclusion drawn by the investigating officer during investigation in this regard, holding accused appellant guilty for offence under Section 365/34 IPC.55. Admittedly, there is no eye witness of the incident of the alleged murder of deceased Gulshan Makhija and the entire case therefore, rests on circumstantial evidence. Circumstantial evidence56. Admittedly, there is no eye witness of the incident of the alleged murder of deceased Gulshan Makhija and the entire case therefore, rests on circumstantial evidence. Circumstantial evidence56. It is trite law that in cases based on circumstantial evidence, the facts and circumstances from which the conclusion of the guilt should be drawn, must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but there must be in their effect to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.57.Summarising the principles of appreciation of evidence in criminal cases based on circumstantial evidence, Full Bench of the Apex Court in Shard v. State of Maharashtra ( AIR 1984 SC 1622 ) observed as under- "The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must' or 'should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act have been done by the accused." 58. Every evidentiary circumstance is a probative link, strong or weak, and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whit of hesitancy. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whit of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct (Please see Dharamdas Wadhwani v. State of UP 1974 (4) SCC 267 ).59. In Ram Avtar v. State of Delhi, ( AIR 1985 SC 1692 ) , the Apex Court has also put a word of caution that the court must guard against the danger of not considering circumstantial evidence in its proper perspective, e.g. where there is a chain of circumstances linked up with one another, it is not possible for the Court to truncate and break the chain of circumstances. In other words, where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated. Thus, where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the Court has to take the cumulative effect of the entire evidence led by the prosecution before acquitting or convicting an accused.60. Bearing the above principles of law enunciated by the Apex Court, we now proceed to scrutinise scrupulously and examine carefully the circumstances established & proved in this case, with serious responsibility imposed on us. Evidence against appellant Sharad61. The learned trial Court has held that the following circumstances stood conclusively proved against appellant Sharad- (i) On 14.3.94 in pursuance to his information he got recovered gold & silver ornaments and precious & semi precious stones from his Universal Automative Garage, which were correctly identified by PW 22 Kamlesh Sharma, Salesman of "Star of India" on 9.6.94 during the test identification parade conducted and those articles were also correctly identified by various prosecution witnesses during trial; (ii) The recovery of motor cycle vide seizure memo Ex.R71. As per FSL report, blood of human origin of "0" group was detected and that the blood stained garments of the deceased were also found to be stained with same blood group; (iii) The recovery of Maruti car bearing registration No. HRP 8347 from the house of Vivek Pangaria; (iv) Sharad Dhakar did not claim the said ornaments to be of his own nor give any explanation as to how he came in possession of those ornaments. The learned trial Judge pressing in service the presumption under Section 114 of the Evidence Act convicted appellant Sharad for offences under Sections 364/34, 302/34, 397/34 read with S. 120-B IPC. 62. At the very outset, we may point out that there is no evidence either direct or indirect to prove the allegation of entering in criminal conspiracy or forming common intention for committing offences Under sections 364, 397, 302 IPC against appellant Sharad.63. Pw 34 Samrath Singh, Circle Officer PS Sodala, Jaipur stated that on 14.3.94 at 12.15 PM. he arrested appellant Sharad vide arrest memo Ex.P9 at the said police station, where the latter was brought earlier for interrogation. Appellant Sharad in his statement under section 313, Cr.PC. admitted that he was arrested at the police station, but asserted that he was detained in the police station much earlier. In view of this, the testimony of PW 8 Laxman Singh & PW 22 Kamlesh Sharma (who are motbirs of the arrest memo) to the effect that while they were returning from Moti Doongari, the police party met them in C-scheme at Prithviraj Marg, Jaipur and told them that they had arrested Sharad Dhakar and as such, they had put their signatures on that arrest memo, cannot be accepted. Both these witnesses, however, did not identify accused Sharad Dhakar in the Court during trial. Since appellant Sharad, himself, admits the factum of his arrest at the police station, the discrepancy in the statements of motbirs and PW 34 Samrath Singh regarding place of his arrest is not substantial.64. Both these witnesses, however, did not identify accused Sharad Dhakar in the Court during trial. Since appellant Sharad, himself, admits the factum of his arrest at the police station, the discrepancy in the statements of motbirs and PW 34 Samrath Singh regarding place of his arrest is not substantial.64. The contention of Shri R.K. Agrawal is that as per Rojnamcha entry Ex.D.51, Banshidhar SI along with constables had left PS Sodala on 13.3.94 and moved for Universal Automative Garage Workshop; that PW 34 Samrath Singh admitted in cross examination that there was no entry in Rojnamcha as to when Banshidhar SI and the police party had returned to the police station and as such this possibility cannot be ruled out that the alleged recovery of ornaments from the said garage was planted. In our considered opinion, only on this count by no stretch of imagination it can be held that the alleged recovery of ornaments at the instance of appellant Sharad Dhakar from the said garage was planted.65. PW 34 Samrath Singh deposed that on 14.3.94 appellant Sharad volunteered information Ex.P 70 to the effect that he had concealed some gold and silver ornaments and precious & semi precious stones underneath the floor of the room of his garage, which he could get recovered, and that appellant Sharad had put his signatures at portion C to D thereon. Appellant Sharad in his statement Under section 313 CrPC. has admitted his signatures on Ex.R 70 but stated that those were procured forcibly. PW 34 Samrath Singh further deposed that on the same day, in pursuance of the said information, appellant Sharad took him to his said garage along with motbirs PW 24 Sadhu Singh and PW 25 Ashok Tandon. Since the gate of the garage was locked, it was got opened by the servant, who was present there. Thereafter appellant Sharad dug the "Kutcha" floor of his garage and took out a big plastic bag, which contained gold & silver ornaments and precious and semi precious stones. Those articles were weighed separately. Since the gate of the garage was locked, it was got opened by the servant, who was present there. Thereafter appellant Sharad dug the "Kutcha" floor of his garage and took out a big plastic bag, which contained gold & silver ornaments and precious and semi precious stones. Those articles were weighed separately. Samrath Singh stated that he prepared recovery memo Ex.P. 23, and placed all the gold ornaments in a cloth bag marked "Ka", silver ornaments in another cloth bag marked "Kha" and precious & semi precious stones separately in another cloth bag marked "Ga" and that afore mentioned motbirs as also Sharad had put their signatures on the chits of those bags and the recovery memo and that he had sealed those bags separately. Samrath Singh also proved site plan Ex.R 24 of the garage from where the alleged the recovery was made. He has been cross examined at length, but his testimony regarding the said recovery has remained unshaken. PW 24 Sadhu Singh & PW 25 Ashok Tandon have deposed likewise and they have fully corroborated the testimony of PW 34 Samrath Singh.66. The contention of Shri R.K. Agrawal is that both these motbirs being friends of Rakesh Makhija are interested persons, that their testimony is inconsistent and that the investigating officer did not care to take persons from that locality as motbirs and therefore, the alleged recovery is highly doubtful. PW 24 Sadhu Singh stated that he alongwith Ashok Tandon were going to Sabzi Mandi for purchasing vegetables and when they reached near the said garage, the police had asked them to become motbirs, whereas PW 25 Ashok Tandon deposed that on that day, when they were returning from Sabzi Mandi. The alleged recovery was made on 14.3.94, whereas these witnesses were examined by the trial court on 31.7.95 i.e. after 16 months. Therefore, after such a long lapse of period, this inconsistency in the statements of these motbirs appears to us quite natural and immaterial.67. PW 34 Samrath Singh stated that when they reached near the said garage, many persons had assembled there and when he asked persons among that crowd to become motbirs, many of them showed their unwillingness and that Sadhu Singh and Ashok Tandon, who were also present there gave their consent and as such they were picked up as motbirs. There is no valid reason to disbelieve him on this count. There is no valid reason to disbelieve him on this count. PW 24 Samrath Singh also stated that after opening the lock of the gate of the garage, the servant had gone away and as such, his signatures could not be procured on the recovery memo. This explanation appears to us quite natural. Therefore, on account of non mentioning the name of servant and not procuring his signatures on recovery memo Ex.R 23, the said recovery does neither become illegal nor doubtful. Moreover, nothing substantial has been elicited in the cross examination of these motbir witnesses to establish that they were interested or unreliable witnesses. We are not at all impressed by the submission of Shri R.K. Agrawal that the cumulative effect of the evidence in respect of the alleged recovery vide memo Ex.P. 23 cries loud that it was fake, planted and fabricated. It may be mentioned here that appellant Sharad in his statement under section 313 Cr.RC. has admitted that the police had taken him to the said auto garage but asserted that the police had brought the articles with him to manipulate the recovery. But from the evidence on record, the said recovery vide memo Ex.R 23 stands well proved beyond reasonable doubt. The learned trial court has correctly discussed, analysed and evaluated the statements of the afore mentioned motbir witnesses and PW 34 Samrath Singh and rightly held that appellant Sharad in pursuance to his information Ex.R 70 got recovered the afore mentioned gold & silver ornaments and precious and semi precious stones. As per the recovery memo Ex.P 23, those ornaments were of 18 carat gold, most of them were studded with diamond, ruby, sapphire and emerald. Those ornaments included bracelets, broaches, rings and pendants. The silver ornaments consisted broaches, bracelets. Those gold & silver and precious and semi precious stones, which appellant Sharad got recovered from his auto garage were worth lacs of rupees and such a huge recovery cannot be planted or fabricated.68. PW 22 Kamlesh Sharma stated that on 24.2.94 in the morning, he was called by the police at Dayal Nagar where a Gypsy car was found lying abandoned and wherein dead body of Gulshan Makhija was lying. He deposed that at that time, six packets of ornaments and other articles were lying scattered inside the Gypsy car. PW 22 Kamlesh Sharma stated that on 24.2.94 in the morning, he was called by the police at Dayal Nagar where a Gypsy car was found lying abandoned and wherein dead body of Gulshan Makhija was lying. He deposed that at that time, six packets of ornaments and other articles were lying scattered inside the Gypsy car. Those packets were seized and sealed by the investigating officer and that two packets of ornaments of the deceased were found missing.69. Appellant Sharad has not claimed the ornaments and other articles recovered at his instance vide recovery memo Ex.P. 23. He has also failed to give any explanation as to how such a huge quantity of gold and silver ornaments and precious & semi precious stones came into his possession. The said recovery was made on 14.3.94 i.e. after 18/19 days of the occurrence. There is ho direct or indirect evidence to establish the presence of appellant Sharad either at the place of abduction of Gulshan Makhija at Janpath Shyam Nagar or at Dayal Nagar, where in the morning of 24.2.94, the Gypsy car and the dead body of the deceased was found lying abandoned. There is also no evidence as to which of the two assailants had driven the Gypsy Car and left the same abandoned near Dayal Nagar extension. The murder of the deceased allegedly took place between 9.15 RM. on 23.2.94 and 8 A.M. of 24.2.94, when the said Gypsy was found lying abandoned. Therefore, this possibility cannot be ruled out that after the murder of the deceased, the theft of ornaments and various precious/semi precious stones was committed by somebody else. In such circumstances, no conclusive presumption can be drawn against appellant Sharad Dhakar under illustration (a) of S. 114, Evidence Act that he had committed the murder of the deceased. Of course, a strong presumption legitimately arises against him that he was the receiver of the stolen property of Gulshan Makhija.70. These ornaments and articles have been correctly identified by PW 18 Ramesh Chand, who had manufactured many of those ornaments. PW 20 Geeta Makhija, Proprietor of M/s Ali Baba, PW 21 Phoola Karmakar another gold-smith, who manufactured many of those ornaments, PW 22 Kamlesh Sharma Salesman of Star of India, PW 31 Rakesh Makhija, motbirs PW 24 Sadhu Singh & PW 25 Ashok Tandon and PW 34 Samrath Singh, I.O. during trial in the court. PW 20 Geeta Makhija, Proprietor of M/s Ali Baba, PW 21 Phoola Karmakar another gold-smith, who manufactured many of those ornaments, PW 22 Kamlesh Sharma Salesman of Star of India, PW 31 Rakesh Makhija, motbirs PW 24 Sadhu Singh & PW 25 Ashok Tandon and PW 34 Samrath Singh, I.O. during trial in the court. PW 20 Geeta Makhija & PW 31 Rakesh Makhija identified those ornaments because they were family members and were handling those ornaments. The identification of stolen articles by the owners or persons who have the opportunity to see them very often, cannot be discarded, merely on the ground that no identification marks were present on such ornaments. It is so because such persons could identify those ornaments by feeling touch of various points of difference distinguishing one thing from the other of the same kind, though they may not be able to formulate the reasons, since such identification is based on the untranslatable impressions of their minds. (See (1) State of MP v. Mukund @ Kundu Mishra 1997 Cr.L.J. 534 (SC) , (2) State v. Kanha Charan 1983 CRLJ 133 , (3) State v. Parewar Ghasi 1968 CRLJ 201 .71. Precious & semi precious stones were found in paper packets (Puria), which bore name of Rakesh Makhija. Admittedly, appellant Sharad Dhakar has not claimed these gold and silver ornaments and precious & semi precious stones, which he got recovered vide recovery memo Ex.R 23, from his garage on 14.3.94, for which he has also failed to give any explanation whatsoever as to how he came in possession of the said articles. In such circumstances, in our considered opinion, the prosecution by adducing clear cogent and convincing evidence has successfully brought home the offence under Section 414, IPC against appellant Sharad Dhakar. However, from the prosecution evidence, it does not stand proved beyond reasonable found that appellant Sharad Dhakar had any complicity or common intention with appellant Manish Dixit or any other co-accused or he had entered into any criminal conspiracy with co-accused and that in furtherance of the said common intention or conspiracy, he had committed the murder of the deceased.72. The alleged recovery of motor cycle as also Fiat car does not connect him with the crime. The alleged recovery of motor cycle as also Fiat car does not connect him with the crime. Therefore, there is no legal and credible evidence to prove the offence under Sections 364 & 397, IPC against him and hence his conviction & sentence for offences Under section 302/34, 364/34, 397/34 read with Section 120-B. IPC cannot be maintained. Evidence against appellant Manish Dixit73. The learned trial Court has found following circumstances against appellant Manish Dixit (1) That immediately after the occurrence on 24.2.94, he went to Hotel Sanjay, where he made an entry under a pseudo name in the Register and the hand-writing expert vide his report found that those entries were written by appellant Manish Dixit; (2) That, he absconded after 6.3.94 and was arrested on 12.7.94 by the Rajasthan Police in Alka Hotel, New Delhi, and at that time, he was armed with a prohibited .455 bore revolver, loaded with three live cartridges, which were recovered from his possession. (3) That, he had filed an application to the District Magistrate, Jaipur for extending time of the licence to purchase a firearm; (4) That, as per FSL report, the bullet retrieved from the skull of the deceased by the doctor was fired from the said revolver; (5) That, he pointed out to the investigating officer the place of incident; (6) That, recovery of ornaments (875 silver rings) vide Ex.P. 14 on 18.7.94 at the instance of appellant Manish from the basement of co-accused Rahul Sharma and those ornaments were correctly identified by PW 22 Kamlesh Sharma during test identification parade and by other prosecution witnesses during trial; and (7) The information memo Ex.R71 given by co-accused Sharad Dhakar regarding involvement of appellant Manish Dixit in the crime. Now we embark upon to closely scrutinise the evidence on record in respect of the aforesaid circumstances. Evidence regarding Circumstance No. 274. PW 33 Satyendra Singh SHO PS Sodala & PW 34 Samrath Singh Dy. SP have admitted that appeilant Manish Dixit was called for interrogation at PS Sodala from 26.2.94 to 6.3.94 for 2/3 times and permitted to go but thereafter he absconded. From a bare perusal of the order sheet dated 26.6.94 of the file of the Committal Magistrate, it stands conclusively proved that proceedings under Sections 82 & 8-3 Cr.RC. SP have admitted that appeilant Manish Dixit was called for interrogation at PS Sodala from 26.2.94 to 6.3.94 for 2/3 times and permitted to go but thereafter he absconded. From a bare perusal of the order sheet dated 26.6.94 of the file of the Committal Magistrate, it stands conclusively proved that proceedings under Sections 82 & 8-3 Cr.RC. were initiated against appellant Manish and he was declared a proclaimed offender and a warrant for his arrest was also issued. The order sheet dated 26.6.94 is a judicial order. In such circumstances, it was not necessary for the prosecution to have proved the said order independently during trial. As a matter of fact, legally a judicial notice can be taken of the said order. Therefore, the contention of Shri S.R. Bajwa that there is no evidence to prove that appellant Manish was a proclaimed offender is against the record and the same is hereby repelled. This subsequent conduct of appellant Manish is a relevant fact under Section 8 of the Evidence Act.75. PW 35 Umaid Singh SHO PS Manak Chowk, PW 36 Gopiram (Constable) and PW 37 Sanjay Kshotriya Circle Officer of PS Manak Chowk have deposed that as per orders of the Additional Director General of Police, a special team was constituted for the arrest of appellant Manish, who was reported to have gone to Delhi; that the said special team left Jaipur on 8.7.94, that in Delhi the members of the team were deputed at various points to find out whereabouts of Manish, that they came to know that he used to visit Alka Hotel situated in Connaught Place area, New Delhi; that on 12.7.94 at about 6 RM. they entered into Alka Hotel, where in its Bar room, appellant Manish was found sitting.76. PW 37 Sanjay Kshotriya stated that Manish seeing the police party, attempted to take out a revolver from the fold of his pant but the police party over-powered him and he was told that he was under arrest. He was taken out from the Bar room and was brought to the police jeep which was standing just outside that Hotel, where his arrest memo Ex.P79 and the seizure memo of revolver Ex.R80 were prepared. Those documents were duly signed by Manish.77. He was taken out from the Bar room and was brought to the police jeep which was standing just outside that Hotel, where his arrest memo Ex.P79 and the seizure memo of revolver Ex.R80 were prepared. Those documents were duly signed by Manish.77. The contention of Shri Bajwa is that the police party did not call any independent person from that locality as a motbir witness; that there are material contradictions in the statements of PW 35 Ummaid Singh, PW 36 Gopiram and PW 37 Sanjay Kshotria about the factum of the alleged arrest of appellant Manish; that the police party even did not inform local police of Delhi, which makes the arrest highly doubtful. He claimed that as a matter of fact, Manish was arrested in Jaipur and that the police have shown fake arrest of Manish at Delhi as also the recovery memo of the revolver. We are not at all impressed by this argument of Shri Bajwa.78. Section 46 Cr.PC. proclaims that in making arrest, police officer or other person shall actually touch the body unless there being a statement to the custody by word or action. Provisions of Section 46 Cr.PC., therefore, do not require that an arrest of the accused person should be made in the presence of some independent and respectable person of the locality. A special team was constituted by the Senior Police Officers for the arrest of Manish who reported to be in Delhi. The police party went to Mew Delhi on 8.7.94 and stayed there till 12.7.94. It was not necessary for all of the members of the special police team to have stayed together at a place in New Delhi. We have carefully perused statements of PWs Ummaid Singh, Gopiram and Sanjay Kshotriya, who have been cross examined at length. We do not find any material inconsistency or contradictions in their testimony regarding the factum of arrest and seizure of revolver loaded with three live cartridges from the possession of appellant Manish. The learned trial Judge has correctly discussed, analysed and assessed statements of these three witnesses and rightly held that appellant Manish Dixit was arrested on 12.7.94 from Alka Hotel New Delhi and that from his possession a prohibited bore revolver Art. 15, which was loaded with three live cartridges, was recovered. The learned trial Judge has correctly discussed, analysed and assessed statements of these three witnesses and rightly held that appellant Manish Dixit was arrested on 12.7.94 from Alka Hotel New Delhi and that from his possession a prohibited bore revolver Art. 15, which was loaded with three live cartridges, was recovered. These witnesses have unanimously stated that the said revolver & live cartridges were sealed in separate packets marked A & B. We do not find anything abnormal in the prosecution case that formal arrest and seizure memo Ex. P. 79 & 80 were prepared in the police jeep, which was standing outside Alka Hotel New Delhi. These witnesses have given plausible explanation for this and stated that since they apprehended some commotion and law & order problem and the staff of the Hotel was also not co-operative, they brought appellant Manish outside the Hotel and prepared documents Ex.P.79 & P80 in the police jeep. It is significant to note that in seizure memo Ex.P80, it has been clearly mentioned that at the time of arrest of appellant Manish, the persons present there were requested to become motbirs but due to his terror, nobody showed his willingness to become a motbir witness and therefore, members of the police party, PWs Ummaid Singh, Gopiram & Amarjit Singh were kept as motbirs.79. During pendency of these appeals PWs 29, 33, & 35 were re-examined and statements of PWs 42 to 46 were also recovered under Section 311 Cr.PC by this Court. PW 35 Ummaid Singh SHO PS Manak Chowk (Jaipur) has proved Rojnamcha reports No. 638 & 957 (Ex.P94 & P 95 respectively) of PS Manak Chowk, whereby on the orders of the Additional Director General of Police, a special police team had left Jaipur for special investigation and returned from New Delhi on 13.7.94. PW Ummaid Singh & PW 45 Laxman Singh Head Mohrir, PS Manak Chowk have proved entries of Malkhana register Ex.P91 and P.92 and deposed that the sealed packets marked A & B containing revolver and three live cartridges, which were recovered from the possession of Manish Dixit were deposited in the Malkhana PS Manak Chowk on 14.7.94 and that those sealed packets were handed over to the police of Sodala. Umaid Singh further proved Rojnamcha report No. 958 of PS Manak Chowk and stated that on 13.7.94 appellant Manish Dixit was also handed over to SHO PS Sodala. PW 35 Umaid Singh further proved entries of the log book of the jeep Ex.P. 35/1 for the period from 9.7 94 to 13.7.94 which shows that the said jeep was taken to Delhi by the police party. Not a single question was put to PW 35 Ummaid Singh, PW 36 Gopi Ram and PW 37 Sanjay Kshotriya to establish that they bore any enmity with appellant Manish.80. Appellant Manish Dixit had admitted factum of his arrest in his statement Under section 313 Cr.P.C. but asserted that he was arrested at Jaipur not at: Delhi. But he has not led any evidence to prove this assertion. Since after 6.3.94 appellant Manish Dixit was absconding and as per the information received by the police party, he was a powerful and resourceful person. In the year 1994, there was a great unrest in Delhi due to activities of terrorists of Punjab & Kashmir. In such circumstances, the police party did not inform Delhi police. This explanation given by these PWs appears to be quite plausible. Therefore, by no stretch of imagination it can be held that appellant Manish was not arrested in Delhi. We also do not find any valid reason to disbelieve the testimony of PWs 35, 36, 37 and the entries made in the aforesaid daily diary of PS Manak Chowk, which were drawn in normal course.81. PW 33 Satyendra Singh SHO PS Sodala produced appellant Manish Dixit before the Magistrate on 13.7.94 and submitted application Ex.D.5 seeking his police remand. In coi.6 thereof it was specifically mentioned that police remand for Manish Dixit was needed for making interrogation and recovery of the looted property and for making enquiry about the weapon of offence used by him in the incident. It is worth while to mention that Manish Dixit did not complain to the Magistrate that he was in fact arrested at Jaipur and not at Delhi. It appears that the Magistrate in his order granting police remand inadvertently mentioned that the investigating officer had to recover the weapon of offence used in the incident. It is worth while to mention that Manish Dixit did not complain to the Magistrate that he was in fact arrested at Jaipur and not at Delhi. It appears that the Magistrate in his order granting police remand inadvertently mentioned that the investigating officer had to recover the weapon of offence used in the incident. If weapon of offence was not recovered from appellant Manish Dixit till 13.7.94, there was no occasion for PW Satyendra Singh to have mentioned in Col.6 that he had to make enquiries from Manish about weapon of offence used in the incident. The Magistrate granted remand to appellant Manish Dixit to police custody till 19.7.94. PW 33 Satyendra Singh thereafter filed another application Ex.D.6 for seeking police remand and the appellant was further remanded to police custody till 23.7.94. Therefore, we do not find any substance in the submission of Shri Bajwa that no revolver was recovered from Manish by that time in view of the order dated 13.7.94 passed by the Magistrate granting police remand.82. It is also significant to note that the defence has not cross examined PW 33 Satyendra Singh on this point nor sought any clarification about the alleged inconsistency in the contents of Col.6 of the application for remand Ex.D.5 and the order passed by the Magistrate thereon. Appellant Manish did not care to examine the Magistrate in supped of his defence for seeking clarification about this inconsistency. Therefore, in our considered view, the prosecution has proved beyond reasonable doubt that after 6.3.94 appellant Manish Dixit had absconded and that he was declared as proclaimed offender and that incompliance of the warrant of arrest issued by the Magistrate, he was arrested by the Rajasthan Police on 12.7.94 in Alka Hotel New Delhi and that from his possession, the revolver Art. 15, loaded with 3 live cartridges, was recovered.83. Appellant Manish Dixit in his further statement Under section 311 Cr.RC. before this Court produced a Certificate of Manager, Alka Hotel New Delhi dated 22.4.97, Ex.D.M/1 but, despite sufficient opportunity he did not examine the Manager of the said Hotel nor did get the said certificate duly proved. Thus, the bald and uncorroborated statement of appellant Manish Dixit that he was not arrested in Delhi but in Jaipur cannot be accepted and such a defence appears to be a creature of an after-thought. Circumstance Nos. 1 & 384. Thus, the bald and uncorroborated statement of appellant Manish Dixit that he was not arrested in Delhi but in Jaipur cannot be accepted and such a defence appears to be a creature of an after-thought. Circumstance Nos. 1 & 384. PW 33 Satyendra Singh deposed that on 27.3.94 he had seized an application dated 31.12.93 Ex.R62, which was written by appellant Manish Dixit. This application was addressed to the District Magistrate, Jaipur, where by Manish had prayed for extension of the date of purchase of a firearm. This fact has also been admitted by appellant Manish Dixit in his statement under section 311 Cr.PC This admitted writing of appellant Manish Dixit was sent by the investigating officer to the hand writing expert along with specimen hand-writing vide Ex.R53 to R61 of Manish in his statement under section 311 Cr.RC. has admitted his specimen hand writings but asserted that he had written those under duress. The Assistant Director (Documents) State F.S.L. Rajasthan, Jaipur, vide his report dated 30.6.95 Ex.R52 opined that as a result of very careful and thorough examination of the dispute writings marked Q1 to Q2 (Original entries of the Register of Sanjay Hotel Jaipur dated 24.2.94 under a pseudo name of Ramesh Sharma B-5 Vivek Vihar New Delhi) are in the hand-writing of the person who wrote standard writing marked A1 to A37 (Ex.R53 to R61) and admitted writing (Ex.R62). However, on the basis of the material supplied to the FSL it was not possible to express any opinion on rest of items i.e. Q3 and Q1/1. Appellant Manish Dixit did not give any reason in his statement under section 313 Cr.RC. as to why he had written the writings Q1 & Q.2 under a pseudo name in the Hotel Sanjay's Register, which was seized vide seizure memo Ex.R26. The seizure memo has been proved by PW 33 Satyendra Singh, I.O. Therefore, this fact that immediately after the incident on 24.2.94, appellant Manish Dixit had made the said entry in the visitor's register of Sanjay Hotel under a pseudo name is a relevant fact, which incriminates him with the crime. Circumstance No. 685. The seizure memo has been proved by PW 33 Satyendra Singh, I.O. Therefore, this fact that immediately after the incident on 24.2.94, appellant Manish Dixit had made the said entry in the visitor's register of Sanjay Hotel under a pseudo name is a relevant fact, which incriminates him with the crime. Circumstance No. 685. PW 34 Samrath Singh deposed that on 18.7.94 appellant Manish Dixit, who was in police custody volunteered information that he had concealed silver ornaments in the basement of the house of Rahul Sharma situated at 16, Mission Compound, Ajmer Road, Jaipur and that the key of the said basement was with Rahul Sharma and he could get those ornaments recovered. Appellant Manish has admitted his signatures on the information memo Ex.R46. PW 34 further stated that in pursuance of the said information, appellant Manish in the presence of motbirs PWs Laxman Singh and Mohanlal took him to the said basement, which was locked, that the key of the said basement was sent for from the mother of Rahul Sharma, as the latter was not present in the house and that thereupon search of Satyendra Singh, was taken in the presence of the motbirs, who went inside the basement along with appellant Manish Dixit. He deposed that Manish Dixit got recovered a plastic bag which was concealed underneath an old attachee placed on a table, that the said plastic bag contained 845 silver rings and 30 studded silver rings and that the total weight of those rings was 3 kgs. PW 34 further deposed that at the time of the said recovery, the mother of Rahul Sharma was also present but she declined to divulge her name and to put her signature on the seizure memo.86. PW 12 Laxman Singh stated that the police party had taken him in a jeep and that a bag was given in his hand and his photograph was taken. He told that the police party had taken him behind the workshop of the roadways and Mission compound. He, however, admitted his signature on the recovery memo Ex.R14 but stated that his signatures were procured at the police out post, in cross examination he admitted that the said plastic bag containing silver rings and the photograph were taken inside the said basement. He has not denied the presence of appellant Manish. This witness was not declared hostile.87. He, however, admitted his signature on the recovery memo Ex.R14 but stated that his signatures were procured at the police out post, in cross examination he admitted that the said plastic bag containing silver rings and the photograph were taken inside the said basement. He has not denied the presence of appellant Manish. This witness was not declared hostile.87. PW 13 Mohanlal has been declared hostile. However, he also admitted his signature on the recovery memo Ex.P 14. He has given correct location and place of the recovery and the presence of other motbirs. He stated that after giving plastic bag in his hand the police had asked him to go inside the basement of that house. The trial Court has rightly not placed any reliance on these motbir witnesses.88. It appears that these motbir witnesses have been won over. However, PW 33 Satyendra Singh has fully corroborated the testimony of PW 34 Samrath Singh and proved factum of recovery of these 875 silver rings at the instance of appellant Manish vide memo Ex.P14. He has admitted that at the time of the said recovery Rahul Sharma was not present and that the key of that basement was taken from mother of Rahul Sharma, and then the lock of the basement was opened. He asserted that appellant Manish alongwith him and motbirs had entered into the basement, where appellant Manish got recovered 875 silver rings, vide recovery memo Ex.R 14 which were seized and sealed on the spot.89. It is significant to note that this witness (PW 33) has not been cross examined at all about the recovery memo Ex.P 14. Not a single question has been put to PWs 33 & 34 to establish that they bore any ill-will or animosity with appellant Manish Dixit. Since challan was also filed against co-accused Rahul Sharma, there was no question of examining him as a prosecution witness. The mother of Rahul Sharma neither disclosed her name nor put her signature on the recovery memo. Therefore, if she was examined, would not have supported the prosecution. In such circumstances, non examination of the mother of Rahul Sharma is not fatal to the prosecution case.90. The mother of Rahul Sharma neither disclosed her name nor put her signature on the recovery memo. Therefore, if she was examined, would not have supported the prosecution. In such circumstances, non examination of the mother of Rahul Sharma is not fatal to the prosecution case.90. PW 34 Samrath Singh stated that co-accused Rahul Sharma had volunteered information Ex.D.7 on 23.3.94 to the effect that he could get recovered some ornaments concealed in white polythene bag in his basement and that in pursuance of his information on the same day, he had gone to the house of Rahul Sharma but the latter did not get any ornaments recovered. PW 34 Samrath Singh admitted that on 23.3.94 he did not take the search of the entire basement but had singly gone there along with co-accused Rahul Sharma, who in pursuance of his information failed to recover any ornaments. We, therefore, do not find much force in the argument of Shri S.R. Rajwa that since the investigating officer had gone to that basement earlier on 23.3.94, the alleged recovery of ornaments at the instance of appellant Manish Dixit vide recovery memo Ex.P.14 is false and fabricated.91. It may be mentioned here that this possibility cannot be ruled out that after the information by co-accused Rahul Sharma dated 23.3.94, no recovery was affected from the basement, appellant Manish Dixit concealed the bag of ornaments there taking it to be a safer place. The learned trial Judge has given cogent reasons for accepting the testimony of PW 33 Satyendra Singh & PW 34 Samrath Singh. Hence it stands well established that appellant Manish Dixit in pursuance to his voluntary information Ex.P46 got recovered 875 silver rings vide recovery memo Ex.P14 from the said basement.92. On 17.8.94 PW 30 Devendra Sharma conducted test identification parade of the ornaments, which were recovered at the instance of appellant Manish vide Ex.P.21, wherein PW 22 Kamlesh Sharma alias Bobby the Salesman of M/s "Star of India" had correctly identified those ornaments. The test identification parade conducted by Devendra Kumar Sharma (PW 30) suffers from patent infirmity and in such circumstances, the learned triai Judge has rightly not relied upon the said test identification parade. The test identification parade conducted by Devendra Kumar Sharma (PW 30) suffers from patent infirmity and in such circumstances, the learned triai Judge has rightly not relied upon the said test identification parade. However, these ornaments, namely 875 silver rings weighing about 3 kgs have been correctly identified by PW 20 Geeta Makhija, PW 21 Phoola alias Rajesh Karmakar, PW 22 Kamiesh Sharma, PW 31 Rakesh Makhija during trial. All these witnesses have been intensively cross examined by their testimony regarding identification of the said ornaments has remained unshattered. Appellant Manish Dixit has not claimed the said ornaments as his own. In these circumstances, it stands well established that those 875 silver rings, which were recovered vide Ex.R14 belonged to deceased Gulshan Makhija. It is also worthy to note that PW 20 Geeta Makhija and PW 31 Rakesh Makhija have not been cross examined at all by appellant Manish Dixit regarding identification of the said ornaments by them in the Court during trial. Even no suggestion was put to them or to any other aforesaid witnesses that those ornaments were shown to them prior to their statements either in police station or elsewhere. Appellant Manish has failed to give any explanation as to how he came in possession and had special knowledge about the afore mentioned 875 silver rings or as to why he had concealed those rings in the basement of co-accused Rahul Sharma. The recovery of those rings were affected within a week of the arrest of Manish. Therefore, a strong presumption arises against him to the effect that either he is receiver of stolen/looted property or had committed the murder of the deceased. Circumstance No. 493. PW 39 Dr. H.L. Bairwa proved post mortem report Ex.P83 and deposed that he found fire arms injuries on the head of the deceased in the manner described in para 7 of this judgment. He further stated that the said injuries were ante mortem in nature and the cause of death of Gulshan Makhija was comma as a result of the injury on the skull and brain by a projectile through a fire arm, which was sufficient to cause death in the ordinary course of nature. Thus, homicidal death of Gulshan Makhija has been well proved by voluminous prosecution evidence. Thus, homicidal death of Gulshan Makhija has been well proved by voluminous prosecution evidence. He deposed that a metallic bullet was found lodged on the mid occipital posterior lobe of the brain of the deceased, that he sealed the same in a bottle and handed over to the police. This witness in his cross examination admitted that he could not identify the said bullet, if the same was shown to him in court. No other question was put to this witness about handing over sealed bottle containing bullet.94. PW 42 Mahendra Singh Head Mohrir PS Sodala proved Rojnamcha report No 1.445 dated 24.2.94 Ex.R86. PW 29 Mool Chand Head Constable stated that Manohar ASI had handed over to him a sealed vial containing crime bullet, which was taken out from the dead body of the deceased, along with sealed jars containing visceras of the dead body. He told that at that time, prevalent practice in the police station was not to deposit the visceras and blood stained garments of the deceased in Malkhana but to immediately send such sealed jars and packets to the State F.S.L. and, therefore, he did not make an entry in the Malkhana register in this behalf.95. PW 33 Satyendra Singh SHO has also deposed likewise. PW 29 Mool Chand & PW 42 Mahendra Singh further stated that on 26.2.94, the sealed vial containing bullet retrieved from the brain of the deceased and sealed jars containing visceras of the deceased were sent to the State F.S.L. PW 42 Mahendra Singh Head Mohrir and PW 43 Pooran Singh of PS Sodala have proved the entry of return of Manohar Singh from F.S.L. vide Rojnamcha report No 1446 dated 26.2.94 Ex.R 88. PW 10 Babulal Constable PS Sodala deposed that or 26.2.94 Incharge Malkhana had given him four sealed packets for depositing those in the State F.S.L., which he had deposited vide FSL receipts Ex.P11 and R2. A bare perusal of these receipts indicates that all those packets were received in the FSL duly sealed.96. The Dy. PW 10 Babulal Constable PS Sodala deposed that or 26.2.94 Incharge Malkhana had given him four sealed packets for depositing those in the State F.S.L., which he had deposited vide FSL receipts Ex.P11 and R2. A bare perusal of these receipts indicates that all those packets were received in the FSL duly sealed.96. The Dy. Director (Ballistic) State F.S.L. vide his report dated 28.4.94 Ex.P. 63 found that the cloth packet containing unmarked sealed vial was properly sealed bearing impressions, which tallied with specimen seal impression in the forwarding letter and that the said sealed packet contained one lead bullet, which was marked by him B/1, that calibre of the said lead bullet was .455 and the said bullet appeared to have been fired from a 45/.455 revolver probably of Webley/Webley & Scot make.97. PW 33 Satvendra Singh stated that Banshidhar SI had brought a sealed packet containing the said bullet from the F.S.L. on 1.6.94, which vide Rojnamcha report No.37 Ex.P 101 of PS Sodala was deposited in the Malkhana. PW29 Mool Chand Incharge Malkhana and PW 33 Satyendra Singh have proved Malkhana entry dated 1.6.94 Ex.P 90 on this count.98. The contention of Shri Bajwa is that Manohar Singh and Banshidhar SI have not been examined, therefore, an adverse inference should be drawn against the prosecution. In our considered opinion, not production of these two witnesses is not fatal to the prosecution case because by 1.6.94, appellant Manish was not arrested, secondly, from the afore mentioned entries in the Rojnamcha of PS Sodala, the F.S.L. receipts Ex.R11 and R12 and F.S.L. report Ex.R63, it stands well proved that seals of the vial containing metallic bullet, which was retrieved from the brain of the deceased were found in tact. Therefore, in our view no material link is missing to raise an inference that the seal of the vial containing metallic bullet did not reach FSL on 26.2.94 in tact or that the same was tampered with after it was received in the Malkhana of PS Sodala from the F.S.L.99. Appellant Manish was arrested on 12.7.94 from Delhi, and a revolver alongwith three live cartridges were recovered from his possession vide seizure memo Ex.R80. PW 35 Ummaid Singh SHO PS Manak Chowk has proved the Rojnamcha report Ex.R94 as also details of arrest of Manish and seizure of the afore mentioned articles from his possession. Appellant Manish was arrested on 12.7.94 from Delhi, and a revolver alongwith three live cartridges were recovered from his possession vide seizure memo Ex.R80. PW 35 Ummaid Singh SHO PS Manak Chowk has proved the Rojnamcha report Ex.R94 as also details of arrest of Manish and seizure of the afore mentioned articles from his possession. He stated that sealed packets containing revolver and three live cartridges marked A & B recovered from the person of appellant Manish were deposited in the Malkhana of PS Manak Chowk vide entry Ex.R91, which has been duly proved by PW 45 Laxman Singh Head Mohrir Incharge Malkhana. PW 45 Laxman Singh & PW 35 Umaid Singh deposed that on 22.7.94 sealed packet of Revolver and three live cartridges were handed over to PW 11 Vijay Singh ASI PS Sodala. Those articles were deposited in the Malkhana of PS Sodala as per testimony of Vijai Singh.100. On 22.7.94 sealed packet of the crime bullet retrieved from the brain of the deceased, sealed packets of three live cartridges and the revolver were sent through PW 11 Vijay Singh ASI to the State FSL, which the latter deposited vide FSL receipt EX.R 13 in the same condition. This fact also stands duly corroborated by the Rojnamcha report No. 1527/dated 22.7.94 Ex.R89 of PS Sodala. The report has been proved by PW 44 Bhopal Singh Head Mohrir. In that report, it has been specifically mentioned that an unmarked sealed packet containing crime bullet along with two sealed packets containing three live cartridges and revolver were handed over to Vijay Singh for depositing those in the State F.S.L. This fact is further corroborated by the report of the Dy. Director (Ballistic) State F.S.L. dated 25.8.94 Ex.R51, wherein it has been clearly mentioned that two sealed packets marked A, B & a sealed unmarked cloth packet containing a vial were received in the F.S.L. properly sealed, bearing impression, which tallied with specimens seal impression forwarded.101. The afore said entries in the Malkhana register as also in Rojnamcha were made in regular course of transaction and there is not a fringe of evidence to hold that those were made or manufactured subsequently. The afore said entries in the Malkhana register as also in Rojnamcha were made in regular course of transaction and there is not a fringe of evidence to hold that those were made or manufactured subsequently. PW 29 Mool Chand and PW 33 Satyendra Singh deposed that on 31.8.94 three sealed packets marked A, B and the packets containing vial of bullet marked B/1 were received from the State F.S.L. through special messenger, which were deposited in the Malkhana of PS Sodala and that to this effect, Rojnamcha report No.1996/ dated 31.8.94 Ex.R 102 was scribed.102. It will be pertinent to mention here that at the request of the appellants, PW41 Dr. M.S. Manocha Ballistic Expert, who prepared report Ex.R51 was examined by the trial Court but not a single question was put to this witness to show that the seals of the afore mentioned packets were not received in the F.S.L. in tact and seals thereof did not tally with specimen seal impression forwarded to him.103. Dr. Manocha in his report dated 25.8.94 Ex.R51, has opined that one .455 revolver (W/1) from packet A was a serviceable firearm; that the examination of the barrel residue of the said revolver indicated that it had been fired, however, definite time of its last fire could not be ascertained; that based on stereo and comparison microscopic examination, the .455 bullet (B/1) had been fired from .455 revolver (W/1) and that three .450/.455 cartridges (L/1 to L/3) from packet B. were live ammunition, which were test fired in the laboratory.104. Thus, in our considered opinion, no material link evidence is missing in this case. On the other hand, the prosecution by adducing clear, cogent and convincing oral & documentary evidence has conclusively proved that the seals on the unmarked packet of the vial containing crime bullet, as also the seals of the packets of the revolver Art. 15 and three live cartridges, marked A & B, which were recovered from the person of appellant Manish Dixit at the time of his arrest on 12.7.94 remained in tact till they reached the SFL and that those were not tampered with.105. Shri S.R. Bajwa has strenuously contended that as per the prosecution case, the unmarked lead bullet alleged to have been taken out of the brain of the deceased, was sent to the State F.S.L. for the first time on 26.2.94 and as per F.S.L. report dated 28.4.94 Ex.R63 given by Dr. RS. Manocha Dy. Director (Ballistic) it was marked B/1, that its calibre was .455 and that thereafter it was sent to the serologist of the FSI, who by his report dated 23.5.95 Ex.P66 opined that it was stained with human blood having "0" group. Shri Bajwa has claimed that first of all the doctor, who conducted post mortem examination of the deceased, must have taken out the said lead bullet by means of forceps, that thereafter the ballistic expert handled the said bullet and ultimately, it was sent to the serologist, who must have scratched blood from the said bullet, in such circumstances, this possibility cannot be ruled out that the pattern of striation marks present on the surface of crime bullet (B/1) must have been mutilated or disturbed. Therefore, it was not at all possible for the Ballistic expert to have correctly conducted the stereo and comparison microscopic examination of the characteristic striation marks on the surface of the crime bullet (B/1). He has vigorously canvassed that it appears that in fact some other bullet was sent by the investigating officer to the Ballistic expert and as such his report Ex.R51 does not inspire confidence.106. We have given our most anxious and careful consideration on this aspect. The prosecution by adducing necessary oral & documentary evidence has proved beyond reasonable doubt that the unmarked bottle (vial) containing crime bullet (B/1), which was retrieved by PW 39 Dr. H.L. Bairwa, was received in the State F.S.L.. on 26.2.94 and that the seals on the vital and the packet thereof were found in tact. Not a single question was put to Dr. Bairwa in cross examination as to how and with the aid of which instrument, the crime bullet was retrieved by him from the brain of the deceased. Even no suggestion was put to him that such bullet was taken out by the aid of forceps and that striation marks on the surface thereof had been mutilated. As per the F.S.L. report dated 28.4.94 (Ex.R63), Dr. Even no suggestion was put to him that such bullet was taken out by the aid of forceps and that striation marks on the surface thereof had been mutilated. As per the F.S.L. report dated 28.4.94 (Ex.R63), Dr. RS, Manocha Ballistic Expert had received a sealed unmarked packet with cloth containing glass bottle (vial) having a bullet. He marked the said packet as B/1. He physically examined the said bullet to find out its calibre. Thus, there was no possibility of erasing of striation marks present on the surface of the said bullet. The sealed packet containing crime bullet (B/1) was again received in the State F.S.L. on 22.7.94 along with two sealed packets marked A & B containing a revolver and three live cartridges. Dr. Manocha, Ballistic Expert after conducting stereo and comparison microscopic examinations vide his report dated 25.8.94 opined that the crime bullet marked B/1 had been fired from .455 revolver. This revolver was recovered and seized from the person of appellant Manish on 12.7.94 at the time of his arrest. Thereafter, the crime bullet was sent to the Serologist, who by his report dated 23.5.95 Ex.R 66 opined that it was stained with human blood of "O" group. The garments of the deceased were also found to be stained with human blood of "0" group vide FSL report dated 24.6.94 Ex.P 64. Therefore, it is abundantly apparent that the serological examination of crime bullet (B/1) was conducted by the Serologist on 23.5.95 after the ballistic expert had conducted the stereo and comparison microscopic examination of crime bullet (B/1) on 25.8.94. Thus, there was no question of erasing or mutilation of the striation marks on the crime bullet prior to its examination by the Ballistic Expert. Hence, the argument of Shri Bajwa in this regard are against the record and based on mere conjectures, which cannot be accepted.107. Moreover, the appellant examined PW 41 Dr. PS. Manocha but not a single question was put to him nor any suggestion was made that the pattern of striation marks on the crime bullet were tainted erased or mutilated. As a matter of fact, not a single question was put to PW 41 Dr. Manocha in respect of his F.S.L. report dated 28.4.94 Ex.R 63 and another FSL report dated 25.8.94 Ex.R 51. As a matter of fact, not a single question was put to PW 41 Dr. Manocha in respect of his F.S.L. report dated 28.4.94 Ex.R 63 and another FSL report dated 25.8.94 Ex.R 51. In such circumstances, the contention of Shri Bajwa that the pattern of striation marks on the crime bullet were erased or disturbed or mutilated by the doctor, while taking it out of the brain of the deceased or by the serologist by scraping blood stains from the crime bullet is not based on any evidence on record. On the other hand, it appears to be a figment of imagination and, therefore, we find his argument devoid of any force and substance.108. Shri Bajwa then contended that PW 41 (PS Manocha has admitted in his cross examination that he had also taken photographs of striation marks on the crime bullet and test bullet, but those have not been produced in the Court. The ballistic expert has also not given any reason, on which he has based his finding in his report Ex.R 51. He has placed reliance on the decision in State of Gujrat v. Adam Fateh Mohd. Umatiya ( 1971 (3) SCC 208 ) , wherein ballistic expert gave opinion that empty cartridges were fired from the rifle because of the arch-like projection on the base of the cartridges produced by the defect in the rifle. The expert also took photographs of two out of the four empty cartridges and photographs of the test cartridges. He compared the photographs of the empty and the test cartridges and came to the conclusion that marks seen on the photographs were similar. He, however, did not take photographs of mis-fired cartridges. It was his evidence that the marks on the test bullet were indistinct and, therefore, it was not possible to compare satisfactorily the marks on the bullets, which had been sent by the police to him. He could not say that the jacket cap of the bullet sent by the police was a bullet which had been fired from the rifle. The ballistic expert admitted that he did not compare the marks of mis-fired cartridges with those of the empty cartridges; that the striker scrapes on the test cartridges and on the empty cartridges were not identical but similar; and that the entire differences between the test cartridges and empty cartridges were vital and varied. The ballistic expert admitted that he did not compare the marks of mis-fired cartridges with those of the empty cartridges; that the striker scrapes on the test cartridges and on the empty cartridges were not identical but similar; and that the entire differences between the test cartridges and empty cartridges were vital and varied. Photographs of the test cartridges and of the empty cartridge revealed that there were black spots on the test cartridges, which did not tally with the black spots on the empty cartridges. He further admitted that photographs were necessary for comparison. In such circumstances, the Apex Court held that since no photographs of mis-fired test cartridges were taken, the evidence of identification unsupported by photographs was not more than an expression of opinion and that the evidence did not establish that test cartridges and empty cartridges were fired from the same weapon or that the mis-fired cartridge was fired from the same weapon. It was further held that since the ballistic expert did not take composite photographs of the empty cartridges super-imposed by empty cartridges and that photographs, which were taken, were not taken in the same condition of light. In view of this, the Apex Court did not place any reliance on the evidence of the expert. But, the view taken by the Apex Court in Adam Fateh Mohd.'s case (supra) has been revised and it has been held in 1978 CrLJ 1137 that the stereo comparison and microscopic test in the best test and that in such test, photographs are not at all required. In the instant case, Dr. Manocha did not take any photographs of the striation marks but conducted the stereo and comparison microscopic examination and submitted his report Ex.P 51. Therefore, it was not necessary for Dr. Manocha to have filed any photographs. Adam Fateh Mohd.'s case, therefore, does not render any assistance to appellant Manish.109. Shri Bajwa also cited the case of Gopal Singh v. State of U.R (1991 Cr.LJ 1235) , wherein it has been held that expert's opinion being bald and having without any reasons cannot be relied upon. In that case an injury was caused by the accused by firing from muzzle loading gun. Shri Bajwa also cited the case of Gopal Singh v. State of U.R (1991 Cr.LJ 1235) , wherein it has been held that expert's opinion being bald and having without any reasons cannot be relied upon. In that case an injury was caused by the accused by firing from muzzle loading gun. Before giving his opinion the Ballistic Expert fired two shots on the trousers of the injured and on a comparison of the two holes created by these shots with the one already there, opined that the earlier hole could be caused by the pellet recovered from the calf of the injured. It was held that it was highly unsatisfactory and could not be said to be the opinion of an expert, because there were no data or reasons. In that case, there was no opinion of the expert that the pellet extracted from the calf of the injured could be fired from the gun, belonging to the accused, nor could it be possible for the expert to give such an opinion, because the gun was a muzzle loading. There was also no evidence of the size of the shots, which were fired by the expert. Positively such are not the facts of the case on hand. Here the ballistic expert vide his report Ex.R 63 had opined that the lead bullet (B/1) extracted from the brain of the deceased was of .455 calibre. After stereo & comparison microscopic examination vide his report Ex.R 51, the Ballistic expert was also of the opinion that the crime bullet (B/1) had been fired from .455 revolver (W/1) (which was seized from the possession of appellant Manish). Therefore, Gopal Singh's case does not come to the rescue of appellant Manish.110. Shri Bajwa then cited the decision in Chunilal v. State of Haryana, (1977 CRLR Notes 57) , wherein Punjab & Haryana High Court interpreting Section 45 of the Evidence Act has held that the ballistic expert should produce facts and not opinions, which cannot be checked, and that he should also submit photographs of the pattern of striation marks found on the crime bullet and the test cartridges. As mentioned earlier, examination and comparison of the pattern of striation marks by taking photographs is now an outdated and obsolete method and the Apex Court has held that correct & convincing method is the stereo and comparison microscopic examination. As mentioned earlier, examination and comparison of the pattern of striation marks by taking photographs is now an outdated and obsolete method and the Apex Court has held that correct & convincing method is the stereo and comparison microscopic examination. In the instant case, Dr. Manocna specifically deposed that he has not formed his opinion incorporated in FSL report Ex.R 51 on the basis of comparison of photographs but on the basis of the stereo and microscopic comparison examination. Moreover, in Chunilal's case (supra) the incident took place before Section 293, Cr.PC. came into force. This section specifically provides that any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under CrPC, may be used as evidence in any inquiry, trial or other proceeding under this Code. Sub-section (4) of S. 293 CrPC includes the Director, Dy. Director or Assistant Director of the State F.S.L. as also Serologist. Therefore, the facts of Chunilal's case are clearly distinguishable.111. Shri Bajwa next placed reliance on the decision in S.H. Jhabawala v. Emperor, (AIR 1953 All 690) , wherein it has been held that opinion of the expert that document is type written on same machine as another is not admissible under Section 45 of the Evidence Act, because it does not include such expert opinion and the Court may ask to explain points in favour of the view, whether the two documents have or have not been type written on the same machine, but must come to its own conclusion and not treat, such assistance as an expert opinion, a relevant fact in itself. We respectfully agree with the dictum. The trial Court had rightly directed the expert to give reason for his opinion and in compliance thereof PW 41 Dr. Manocha submitted and prepared his detailed report Ex.P 84 incorporating reasons for his opinion therein. It may be pointed out that no question was put to Dr. Manocha assailing the reasons given by him in his report Ex.P 84.112. Hatcher Jury Wilier in his Treatise, "Firearms investigation identification and evidence" (1987 Edn. at page 225 & 226) has commented that there is a decline in use of Misco comparison photographs, there are several reasons for that. Manocha assailing the reasons given by him in his report Ex.P 84.112. Hatcher Jury Wilier in his Treatise, "Firearms investigation identification and evidence" (1987 Edn. at page 225 & 226) has commented that there is a decline in use of Misco comparison photographs, there are several reasons for that. Most important reason is that the fire-arms identification is now accepted in courts far more readily than it was even a few years ago. Further, the findings of the Expert are accepted by the judge and jury without the visual proof required. The psychologist, the doctor, and scientist, when they testify in court are not required to present photographs to prove their findings. Neither should the Firearms Expert when he is testifying in his speciality. Then another reason for the decline in photography is the vast increase in the number of cases handled. If photographs were taken in one case, they would have to be taken in every case, and the photographic expense also will be very high. Thirdly, there are also photographic reason for the almost entire abandonment of this method of presentation. Unfortunately, the lenses of a camera do not adjust in the way that the human eye adjusts. The depth of field is extremely limited. Unlike the human eye, a photographic film has far less tolerance to variation in lighting. Photographs are almost always unsatisfactory to the Expert, who has made a positive comparison through the microscope. Person photographs only what he can seen at one single time. The camera cannot move along the surface of bullets to pick up identity after identity. Further these practice are not understood by injuries and judges. A good deal of knowledge and experience are necessary to evaluate them. The same view has been taken by Richard Saferstin in his Treatise, "Criminalists an introduction to Forensic Science" (1986 Edn.).113. PW 41 Dr. PS. Manocha appeared before trial Court on 22.8.95 but the advocates for the accused persons expressed their desire to examine him only after he submitted reasons for his opinion. The Court by its order dated 22.8.95 directed Dr. Manocha to submit written reasons for his opinion. On 23.8.95 Dr. Manocha submitted his report containing reasons for his opinion, which was marked Ex.P 84. Dr. The Court by its order dated 22.8.95 directed Dr. Manocha to submit written reasons for his opinion. On 23.8.95 Dr. Manocha submitted his report containing reasons for his opinion, which was marked Ex.P 84. Dr. Manocha was examined on 30.8.95, wherein he deposed that on 21.7.94 three sealed packets out of which two were marked A & B, while the third packet was unmarked, were received in the State F.S.L. from PS Sodala. Packet "A" contained one .455 bore revolver Webley, which was marked by him as W/1; packet "B" contained three live cartridges, which were marked by him as L1 to L3 and from unmarked packet one lead bullet of .455 calibre (B/1) was found. He deposed that he had compared the suspected bullet (B/1) with fired test bullets during stereo & comparison microscopic examination by comparing characteristics on the surfaces of those bullets. The pattern of striation present on the surface of the suspect bullet (B/1) were compared with pattern of striation on the test bullets during stereo and comparison microscopic examination at different positions after revolving those through 360 degree and that after such comparison he found that characteristic striation marks present on the suspected bullet (B/1) were similar and matching with test bullets fired from revolver (W/1) and that on the basis of the stereo & comparison microscopic examination, he had drawn his opinion incorporated in FSL report Ex.R 51. Dr. Manocha, specifically stated that he did not compare striation marks on the suspected bullet and those on the test fired bullets by taking their photographs. In such circumstances, filing of the photographs by the expert of the pattern of striation marks on the suspected and test fired bullet was not at all necessary as the report Ex.R51 given by Dr. Manocha was based on the stereo and comparison microscopic examination. Dr. Manocha was not cross examined in respect of his FSL reports Ex.R 51 and R 63. Which are admissible in evidence under Section 293, Cr.RC. and fall within the meaning of substantial evidence.114. Manocha was based on the stereo and comparison microscopic examination. Dr. Manocha was not cross examined in respect of his FSL reports Ex.R 51 and R 63. Which are admissible in evidence under Section 293, Cr.RC. and fall within the meaning of substantial evidence.114. The next argument submitted by Shri Bajwa is that the suspected bullet, having striation marks was a 'document' within the meaning of section 3, Evidence Act, that the said bullet which was primary evidence, was not produced before the trial court, FSL reports Ex.R 51 and R 63 being secondary evidence, are not admissible in evidence, especially when the prosecution did not procure permission from the trial court for adducing such secondary evidence. Therefore, the learned trial Judge was committed patent illegality in placing reliance on those reports. This argument, which appears quite attractive in the first glance is in fact fallacious and misconceived, which cannot be accepted.115. Section 3 of the Evidence Act defines "document", which means any matter expressed or described upon any substance, by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. As per illustrations appended to the definition of "document", a writing is a document; words printed, lithographed or photographed are document; a map or plan is a document; an inscription on a metal plate or stone is a document; a caricature is a document. The term "document" is one of difficult definition; may so called documents being more properly classed under the head of real evidence. Best defines "documents" as including "all material substance on which the thoughts of men are represented by writing, or any other species of conventional mark of symbol and expressly include milkmen's scores, exchequer tallies, and the like. What on defines document as "an instrument on which is recorded, by means of letters, figures or marks, matter which may be evidential used". Stephen's definition is of course, most restricted : "Any substance having any matter expressed or described upon it by marks capable of being read". The term, 'document' as defined in the Indian Evidence Act is wider than that of Stephen's definition of document inasmuch as photographs, caricatures and the like would probably be excluded under Stephen's definition. Stephen's definition is of course, most restricted : "Any substance having any matter expressed or described upon it by marks capable of being read". The term, 'document' as defined in the Indian Evidence Act is wider than that of Stephen's definition of document inasmuch as photographs, caricatures and the like would probably be excluded under Stephen's definition. But, the words, "intended to be used, or which may be used" in the definition of the term "document" necessarily implies that the documents has to be used by some party against another. The term, "document" has also been defined under Section 3(18) of the General Clauses Act. The definition of "document" under Section 3 differs from the definition "writing" in the English Criminal Law. The English word applies to the material on which words are written, whereas it applies not to the material but to the matter written. (Please see Law Commissioner's First report. Section 88), The definition under Section 3 and the description given in that section makes it clear that the word "document" used in law to denote not the substance upon which human ideas are delineated, but the mere expression of ideas does not convert writing into a document unless the writing was "intended to be used or which may be used as evidence of that matter."116. It is, therefore, evident that thoughts of men are represented by writing or human ideas expressed or described on any substance by means of letters or figures will fall within definition of "document". But, the striation marks caused on the surface of the bullet by friction that grouse on the barrel of the fire-arm due to the force and velocity generated by the charge of the ammunition, even if caused by putting pressure on the trigger of the fire-arm will not fall within the definition of 'document' under Section 3 of the Evidence Act, because it is not intended to be used or which may be used for the purpose of recording that matter. Hence in our considered opinion, the suspect/crime bullet is not a document within the meaning of S 3, Evidence Act.117. Shri Bajwa has relied on the case of Nityananda v. Rashbehari ( AIR 1953 Cal 456 ) . In that case, original document was in possession of opposite party, which was sought to be proved by a carbon copy thereof. Hence in our considered opinion, the suspect/crime bullet is not a document within the meaning of S 3, Evidence Act.117. Shri Bajwa has relied on the case of Nityananda v. Rashbehari ( AIR 1953 Cal 456 ) . In that case, original document was in possession of opposite party, which was sought to be proved by a carbon copy thereof. It was held that in order that secondary evidence of documents mentioned in S. 65(a) of the Evidence Act may be given, it is essential that the procedure laid down in S. 66 should be strictly complied with, and where no notice as required by Section 66 is given the secondary evidence is not admissible. In our considered opinion, there cannot be two opinions about this principles of law. Since in the instant case, the crime bullet does not fall within the meaning of document, by no stretch of imagination, it can he held that since crime bullet is not produced in the Court, expert opinion shall not be admissible in evidence being its secondary evidence without procuring proper permission in accordance with law. Therefore, Nityananda's case does not come to the help of appellant Manish in any way. Hence for the reasons mentioned above, we find that argument advanced by Shri Bajwa on this count is patently illusory and misconceived and the same must abort. Therefore, this contention of Shri Bajwa is hereby repelled.118. Shri Bajwa has strongly urged that as per testimony of PW 4 Bhanwarlal, PW 6 Rajesh Karmakar, PW 9 Vijay Kumar and PW 19 Laiaram, on 24.2.94 they had seen a pistol lying in the Gypsy, wherein the dead body of the deceased and the bags containing ornaments etc. were found near Dayalnagar Extension Gopalpura Byepass. Shri Bajwa submitted that in such circumstances, this possibility cannot be ruled out that the police might have planted that fire-arm and shown a fake recovery of the revolver from the person of appellant Manish. According to him, there is no reason to disbelieve the statements of the aforementioned witnesses.119. We have carefully glanced through the statements of these witnesses. PW 4 Bhanwarlal was the motbir witness of seizure memo Ex.R 2 of the blood stained soil and control sample lifted from the place, where the abandoned Gypsy was standing wherein the dead body of Gulshan Makhija and his belongings were found lying. We have carefully glanced through the statements of these witnesses. PW 4 Bhanwarlal was the motbir witness of seizure memo Ex.R 2 of the blood stained soil and control sample lifted from the place, where the abandoned Gypsy was standing wherein the dead body of Gulshan Makhija and his belongings were found lying. He was also motbir of the seizure memo Ex.R 3 & P 4 of bill books, cheque books, tiffin carrier etc. seizure memo Ex.R 5 pertaining to show cases of the ornaments, and seizure memo Ex.P. 6 1 whereby personal belongings of the deceased namely bracelet, rings, pendants, cash amount, watch etc. were seized. This witness admitted his signature on memoes Ex.P. 2 to Ex.P. 6, but pleaded his ignorance as to for what purpose his signatures were procured on these documents. He also 5 stated that he was called at the police station and was asked to put signature on those documents. This witness was declared hostile. In cross examination by the Public Prosecutor he specifically deposed that the police did not seize any article in his presence. He also categorically refuted that the said documents were prepared at the place of occurrence. Thus, he maintained to that he has not gone to the piace of incident. However, in cross examination, conducted by the advocates for the accused persons, he told that the police had seized sample of soil near the Gypsy. He further stated that the police had called him at 5 PM. at the police station and his signature were procured on the aforesaid documents. He then asserted that he had not gone to the place, is from where the police had seized the sample of soil. However, in the last line of his statement, he stated that he had seen revolver lying in the Maruti, which the police had taken away. Apparently, the statement of this witness is replete with material contradictions and inconsistencies. As per the testimony he did not even go to the place of incident, where abandoned Gypsy was found parked 2 along with dead body of the deceased. He was simply a motbir in respect of memoes Ex.R 2 to R6. His statement Under section 161 CrPC was also not recorded. The presence of Bhanwarlal PW 4 at the place of the incident does not stand established. He was simply a motbir in respect of memoes Ex.R 2 to R6. His statement Under section 161 CrPC was also not recorded. The presence of Bhanwarlal PW 4 at the place of the incident does not stand established. The alleged seizures had taken place in the morning of 24.2.94, whereas as per statement of PW 4 Bhanwarlal. He was called at police station ' Sodaia at 5 PM. in such circumstances, he is a wholly unreliable witness, and the learned trial Judge has rightly discarded his testimony.120. PW 6 Rajendra Kumar is another motbir witness of seizure memoes Ex.R 2 to R6. He has proved the said memoes, but stated that he had seen one iron coloured pistol lying underneath the steering wheel of the Gypsy, : which the police had seized and prepared memoes Ex.R2 to R6. But there is no mention of the seizure of any pistol in these seizure memoes. In cross examination, this witness specifically stated that the police had not prepared and seizure memo of that pistol. He then pleaded his ignorance as to whether the police had taken that pistol in its custody or not? PW 6 Rajendra Kumar has not stated that he had found a revolver lying the in Gypsy. He also does not state, whether the police had seized or taken the pistol in its possession. His statement is, therefore, vague, waivering the contradictory. His police statement was not recorded as such, there was no question of confronting him with his previous statement. In our considered opinion, PW 6 Rajendra Kumar, for the best reason known to him, has persistently told a lie that he had seen some iron coloured pistol lying in the Gypsy. He is, therefore, only a partly reliable and partly unreliable witness, and his statement to the effect that he had seen pistol lying in the Gypsy being patently false is liable to be discarded.121. PW 19 Lalaram is a motbir witness of the seizure memo of the Gypsy Ex.P. 18. Another motbirs were PW 23 Trilok Singh and PW 31 Rakesh Makhija. Seizure memo Ex.P 18 was drawn by PW 40 Himmat Singh SHO PS Sodala, who had conducted initial investigation in this case. Lalaram was also a witness of memo Ex.R 19 regarding developing of mould of tyre mark of some vehicle and a foot print and seizure of Gypsy Ex.R 18. Seizure memo Ex.P 18 was drawn by PW 40 Himmat Singh SHO PS Sodala, who had conducted initial investigation in this case. Lalaram was also a witness of memo Ex.R 19 regarding developing of mould of tyre mark of some vehicle and a foot print and seizure of Gypsy Ex.R 18. In his examination is chief, he proved memoes Ex.R 19 & R 18 and did not say anything about any firearm lying in the Gypsy. In cross examination, he stated that he did not see any ornaments lying in the Gypsy but told that he had seen something like a revolver lying in the Gypsy, which was not clearly visible. He did not say anything else about that firearm. His statement on this count, is, therefore, vague and half heated. He was not even sure as to whether that thing was a revolver or anything else. It appears, this witness has deliberately told a lie before the trial court on this score.122. PW 23 Trilok Singh stated that in the morning of 24.2.94 when he opened the gate of his house and came out, he saw one white coloured Gypsy lying abandoned near the road. Thereafter at about 7.30 A.M. again when he came out of his house to board her daughter in an auto rickshaw for the school, he noticed some blood stains on the Gypsy as also on the earth thereunder. He also noticed that the rear door of the Gypsy was open and some articles were also lying there. Thereupon he impugned the police on phone, whereupon the latter arrived there and seized the Gypsy and the articles. The police had also taken photographs there. He has not stated that any firearm was lying in the Gypsy nor any suggestion was put to him by the defence.123. PW 9 Vijay Kumar is motbir of memo Ex.RO. regarding lifting of chance prints and taking photographs of the said Gypsy. He stated that he had seen a crowd along with the police collected near the Rajasthan Nursing Home. This witness was declared hostile. However, in cross examination he stated that one revolver was lying near the steering wheel of the Gypsy, which the police had lifted. He told that he did not remember as to whether some articles were lying on the rear portion of the Gypsy or not. The police did not record his statement. This witness was declared hostile. However, in cross examination he stated that one revolver was lying near the steering wheel of the Gypsy, which the police had lifted. He told that he did not remember as to whether some articles were lying on the rear portion of the Gypsy or not. The police did not record his statement. The revolver Art. 15 was also not got identified on behalf of the accused persons from PVV 4 Bhanwarlal, PW 6 Rajendera Kumar, PW 9 Vijay Kumar & PW 19 Lalaram to establish that they had seen the said revolver lying in the Gypsy on 24.2.94.124. In State of Gujarat v. Anirudh Singh, 1977 (3) Crime 82 (SC) , the Apex Court held that merely because some of the witnesses have turned hostile their ocular evidence recorded by the trial court cannot be held to have been washed of or unavailable to the prosecution, and it is the duty of the Court to carefully analyse the evidence and reach at the conclusion as to whether that part of the evidence consistent with the prosecution is acceptable or not. It has also been held that merely because the witnesses are police officers. Their evidence cannot be and must not be rejected out rightly as unreliable or unworthy of acceptable. However, their testimony is required to be subjected to careful evaluation like any other witness.125. Besides the aforesaid motbir witnesses, the prosecution has also examined PW 22 Kamlesh Sharma, PW 31 Rakesh Makhija, PW 34 Samrath Singh and PW 40 Himmat Singh, who have clearly consistently and categorically deposed that no revolver or firearm was found lying in the said Gypsy on 24.2 94. All these witnesses have categorically proved the prosecution case in respect of the afore mentioned seizure memoes. During arguments, Shri Bajwa submitted that the learned trial Judge has not discussed the statements of PW 4 Bhanwarlal, PW 6 Rajendra Kumar, PW 9 Vijay Kumar, and PW 19 Lalaram, but this argument is against the record. The learned trial Judge has scanned, analysed and assessed statements of the afore mentioned witnesses and has rightly disbelieved them giving clear and cogent reasons, with which we fully agree. Therefore, the defence theory to the effect that a firearm (pistol/revolver) was found lying in Gypsy on 24.2.94 by the police cannot be believed.126. The learned trial Judge has scanned, analysed and assessed statements of the afore mentioned witnesses and has rightly disbelieved them giving clear and cogent reasons, with which we fully agree. Therefore, the defence theory to the effect that a firearm (pistol/revolver) was found lying in Gypsy on 24.2.94 by the police cannot be believed.126. As mentioned earlier, the recovery of revolver Art. 15 from the possession of appellant Manish on 12.7.94 at Alka Hotel, New Delhi has been well proved beyond reasonable doubt by voluminous prosecution evidence. In such circumstances, the submission ot Shri Bajwa that the revolver was found in the Gypsy on 24.2.94 and the recovery of the said revolver was falsely made form the possession of appellant Manish is clearly against the record, which cannot be accepted.127. There is yet another aspect to be taken into consideration that if the Revolver was found lying in the Gypsy and the same was taken away by the police on 24.2.94 then, what was the hitch for the investigating officer to have waited till 12.7.94 to show a concocted and fake recovery from the possession of the appellant Manish, who as per his own statement was called by the police from 26.2.94 till 6.3.94 on many occasions. The crime bullet had also been recovered from the brain of the deceased on 24.2.94, which had been sent to the State F.S.L. on 26.2.94. Therefore, in view of the aforesaid facts and circumstances, it becomes abundantly apparent that the defence theory that a revolver was lying in the Gypsy, which was planted and fake and phoneix recovery from the possession of appellant Manish was shown, is totally false and concocted, patently false.In re. place of incident pointed out by appellant Manish (Circumstance No. 6)128. PW 34 Samrath Singh deposed that on 21.7.94 appellant Manish was taken to the place of incident at Janpath Shyam Nagar, where he pointed out that from place marked "A" in Ex.P. 47 he had fired shot from the revolver. Apparently this amounts to admission/confession before the police officer, which is not admissible in evidence. No other witness has corroborated the testimony of PW 34 Samrath Singh on this count. Therefore, this is not at all a circumstance connecting appellant Manish with the crime.Circumstance No. 7 Information memo Ex.P. 71 given by co-accused Sharad regarding involvement of appellant Manish129. Apparently this amounts to admission/confession before the police officer, which is not admissible in evidence. No other witness has corroborated the testimony of PW 34 Samrath Singh on this count. Therefore, this is not at all a circumstance connecting appellant Manish with the crime.Circumstance No. 7 Information memo Ex.P. 71 given by co-accused Sharad regarding involvement of appellant Manish129. PW 34 Samrath Singh deposed that on 14.3.94, appellant Sharad had volunteered an information to him in the following terms : " eksVj lkbZfdy ua0 vkj0ts0 14 1 ,e 6373 ctkt dkoklkdh cjax yky tks esjs ikl fnukad 23-2-94 dks 'kke dks Fkh o ek:fr dkj ua0 ,p0vkj0ih0 8347 cjax dkyh tks fnukad 23-2-94 dks jk=h esjs ikl Fkh ftls jk=h esa euh"k nhf{kr us pykdj dke esa yh Fkh] esjh tkudkjh esa gS pydj cjken djok ldrk gwWaA " In pursuance of the said information, appellant Sharad got recovered motor cycle and Maruti car vide recovery memoes Ex.R 72 & P 73 respectively. The contention of Shri S.R. Yadav and Shri R.N. Khandelwal is that the disclosure statement of appellant Sharad to the effect that the said motor cycle and the car were used and driven by appellant Manish is also admissible in evidence under Section 27 of the Evidence Act, because the same does not amount to confession.130. Under Section 27 of the Evidence Act, when any fact is deposed, to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information. Whether it amounts to a confession or not, relates distinctly to the fact thereby discovered, may be proved. In the information memo Ex.R 71, statement Under section 27, Evidence Act, of co-accused Sharad to the effect that he said motor cycle and the car were driven and used by appellant Manish do not tantamount to any discovery of fact. Moreover, at the most it can be a statement of an accused/accomplice against co-accused. But. this statement also has not been corroborated by any oral or documentary evidence. Therefore, on the basis of such a bald statement of co-accused Sharad it cannot be conclusively held that appellant Manish had driven or used the said motor cycle or car in committing the crime. Therefore, this circumstance does not connect appellant Manish with the crime.131. But. this statement also has not been corroborated by any oral or documentary evidence. Therefore, on the basis of such a bald statement of co-accused Sharad it cannot be conclusively held that appellant Manish had driven or used the said motor cycle or car in committing the crime. Therefore, this circumstance does not connect appellant Manish with the crime.131. From the above detailed discussion of the evidence, adduced in this case, in our considered view, the prosecution has successfully proved beyond reasonable doubt the following circumstances against appellant Manish- (1) On the date of incident 23.2.94 appellant Manish made a forged entry' in the visitor's Register of Hotel Sanjay, Jaipur under a pseudo name which as per FSL report was written by him; (2) Appellant Manish was called for interrogation by the police from 26.2.94 till 6.3.94 and thereafter he absconded. On 26.4.94 he was declared as a proclaimed offender by the Magistrate; (3) In the evening of 12.7.94, appellant Manish was arrested in the Bar room of Alka Hotel, New Delhi by Rajasthan Police vide arrest memo Ex.R 79 and at the time of his arrest, he unsuccessfully attempted to take out a revolver from the fold of his pant, put the police over powered him and from his possession, one .455 bore revolver, Art. 15, loaded with three live cartridges, was recovered vide recovery memo Ex.P. 80, and those recovered articles were seized and sealed by the police officer; (4) At the time of his arrest on 12.7.94, an amount of Rs.4890/- was also seized from his person. Appellant Manish has also admitted this fact Under section 314. CrPC. His plea that he was arrested at Jaipur has been found to be patently false; (5) In pursuance to his voluntary disclosure statement Ex.P 46, appellant Manish got recovered 875 silver rings at his instance from the basement of co-accused Rahul Sharma vide recovery memo Ex.P 14, which were sealed by the investigating officer; (6) Those recovered ornaments were correctly identified by PW 22 Kamlesh Sharma during test parade. During trial, PW 20 Geeta Makhija, PW 21 Phoola Karmakar, PW 31 Rakesh Makhija and PW 33 Satyendra Singh correctly identified those ornaments and deposed that those belonged to deceased Gulshan Makhija. During trial, PW 20 Geeta Makhija, PW 21 Phoola Karmakar, PW 31 Rakesh Makhija and PW 33 Satyendra Singh correctly identified those ornaments and deposed that those belonged to deceased Gulshan Makhija. Appellant Manish neither claimed those ornaments recovered at his instance to be his own nor did give any explanation whatsoever as to how he came in possession and special knowledge of those ornaments. Therefore, a presumption under illustration (A) of section 114, Evidence Act that he either committed the murder of the deceased or was a receiver of the said looted property, arises against him. (7) Revolver Art. 15 was unlicensed and it was of a prohibited bore; 1 (8) The bullet retrieved from the dead body of deceased Gulshan Makhija was fired from the revolver Art. 15, which was recovered from appellant Manish at the time of his arrest; (9) No vital material link in evidence to prove that the seals to the 5 packets of the crime bullet and those of the packets marked A & B containing revolver Art. 15 and the live cartridge remained in tact and were not tampered with till they reached the State F.S.L., is missing; (10) There was no animosity of investigating officers and other prosecution witnesses against appellant Manish; and 1C (11) Appellant Manish had submitting an application Ex.R 67 to the District Magistrate for extending time to purchase the firearm. 132. The afore mentioned facts and circumstances stand proved beyond reasonable doubt by the prosecution evidence. They form a complete chain of circumstances, which unerringly points towards the guilt of appellant Manish 1* and connect him with the abduction and murder of Gulshan Makhija and looting of the ornaments from him. In our considered opinion, appellant Manish has. therefore, rightly been convicted by the learned trial Court for offences Under section 364, 397, 302 IPC and Under section 7 read with Section 25(1)(a) of the Arms Act. 2 DB Cr. Appeal No. 54/97 State v. Manish & Sharad 133. The learned trial Judge by his impugned judgment acquitted appellants Manish for offences under Section 302, 364 and 397 IPC, but convicted him under Sections 302/34, 364/34 and 397/34 IPC. 2 DB Cr. Appeal No. 54/97 State v. Manish & Sharad 133. The learned trial Judge by his impugned judgment acquitted appellants Manish for offences under Section 302, 364 and 397 IPC, but convicted him under Sections 302/34, 364/34 and 397/34 IPC. Since the 2 prosecution has failed to prove that appellants Manish and Sharad had formed a common intention to abduct Gulshan Makhija, commit robbery and his murder, for the reasons mentioned above, appellant Manish has been now found guilty by us for offences under Sections 364, 302 & 397 IPC. Hence the State appeal to this extent deserves to be allowed and the impugned : judgment, whereby Manish has been acquitted for the said offences is hereby set-aside. While deciding DB Cr. Appeal No. 502/95 filed by appellant Sharad Dhakar it has been held by us that he cannot be held guilty for offences under Sections 302/34, 364/34 and 397/34, IPC on the other hand, we have held him guilty for the offence under Section 414 IPC. Therefore, to this extent only whereby appellant Sharad Dhakar has been found guilty under S. 414, IPC, the State appeal is partly allowed. Rest of the State appeal stands dismissed. Cr. Misc. Petition No. 856/95 Devendra Kumar v. State 134. Shri A.K. Gupta, learned counsel for PW 30 Devendra Kumar Sharma has submitted that the strictures passed and observations made by the learned trial Judge against the petitioner are in violation of principles of natural justice as no opportunity was given to him to explain his conduct and that since the petitioner was examined after about a lapse of one year of conducting the test identification parade due to lapse of memory, he had bonafide given his statement, which was found against the contents of the test identification parade Ex.R 20 and R 21 and the orders passed by him. Therefore, the impugned observations/strictures passed against the petitioner are unwarranted, tantamount to abuse of process of Court and as such, those deserve to be expunged.135. The learned Public Prosecutor has contended that the observations and remarks made by the learned trial Judge against the petitioner are proper, fair and perfectly justified.136. Petitioner Devendra Sharma (PW 30) conducted test identification parades on 9.6.94 and 17.8.94 in respect of various ornaments recovered at the instance of appellants Sharad and Manish respectively. He prepared identification parade memos Ex.R 20 and P 21. Petitioner Devendra Sharma (PW 30) conducted test identification parades on 9.6.94 and 17.8.94 in respect of various ornaments recovered at the instance of appellants Sharad and Manish respectively. He prepared identification parade memos Ex.R 20 and P 21. Ax that time, lie was working as Tehsildar & Sub Registrar, Jaipur. He stated that on 9.6.94 SHO PS Sodala submitted an application Ex.R 28 requesting him to conduct identification parade of articles as the latter had to file challan in the Court; that on the same day, at about 2.15 RM. the said SHO brought three sealed packets, which were opened in his (petitioner) presence by his staff and that articles of those packets were mixed with each other. Thereafter, the police produced one Bobby alias Kamlesh Sharma (PW 22), who correctly identified one third of those articles. He specifically stated that he did not send for any ornaments from outside and mixed those with the ornaments, which were taken out from those three sealed packets brought by the SHO. He further stated that thereafter he prepared test identification memo Ex.P. 20, which bears his signatures. Again on 17.8.94 at the request of the SHO PS Sodala he conducted test identification parade of ornaments, which were brought by the said SHO in three sealed packets. Those packets were opened in his (petitioner) presence. Ornaments of those three packets were mixed interse. Bobby alias Kamlesh Sharma. (PW 22) correctly identified all those articles. Thereafter he prepared test identification memo Ex.R 21, which bears his signatures. He deposed t(iat on both the occasions, after conducting the test parades, he had entrusted all those articles in open condition to the SHO and that he neither sealed those articles nor got them sealed in his presence. In cross examination, he stated that application Ex.R 28 was produced by PW 34 Samrath Singh SHO. Seal impressions on those packets were illegible and as such he was not in a position to give details of those seal impressions. He also did not ask the SHO as to who had affixed those seal impressions. He did not remember as to whether the said SHO had shown to him the copies of the recovery memoes or not. He admitted that he did not compare the seal impressions affixed on those packet with the seal impressions affixed on respective recovery memoes. He also did not ask the SHO as to who had affixed those seal impressions. He did not remember as to whether the said SHO had shown to him the copies of the recovery memoes or not. He admitted that he did not compare the seal impressions affixed on those packet with the seal impressions affixed on respective recovery memoes. Devendra Sharma petitioner deposed that after conducting test parade he scribed order A to B on the back of application Ex.R 28, which also bore his signature. In the said order, PW 30 Devendra Sharma at portion E to F, had written as under ; "Fard Japti par ankit sea namuna se seal milai gai".137. When the petitioner was confronted with this portion E to F of his order, he replied that it might have been written correctly but added that he could not remember the said fact while giving his statement in the Court. Thereafter, a specific question was put to him as to what did he understand from portion E to F of his order recorded on the back of application Ex.R 28. He replied. "Unke pass jo seal laye the, us seal ko unhone mujhe dikhaya tha, iske alava mera koi arth nai hai". This even after refreshing his memory about portion E to F on the said order on Ex.R 28, the petitioner deliberately gave a vague answer in a most irresponsible manner. He also made contradictory statements on this count. His statement was also inconsistent and contradictory to the contents of test identification parade memoes Ex.R 20 & R 21, wherein it has been specifically mentioned that in the ornaments recovered vide recovery memo dated 14.3.94, three times ornaments of each type were mixed by him before the test parade. It was also mentioned in test parade memo Ex.R 20 and P21 that the investigation officer had brought sealed packets of the articles to be identified and articles in three packets which were to be mixed. It was also mentioned in test parade memo Ex.R 20 and P21 that the investigation officer had brought sealed packets of the articles to be identified and articles in three packets which were to be mixed. The learned trial Judge at R72 of the impugned judgment has made following observation against the petitioner- " rglhynkj tSls ftEesnkj vf/kdkjh }kjk viuh QnZ ds fojks/k esa bl izdkj dk c;ku nsuk ;g tkfgj djrk gS fd ;k rks mlus QnZ izn'kZ ih0 20 vkSj izn'kZ ih0 21 vkSj izn'kZ vkSj izn'kZ 28 dks iq'r ij vknsf'kdk xyr fy[kk gS ;k U;k;ky; esa viuk >wBk c;ku fn;k gSA bu nksuksa esa ls dksbZ ,slh Hkh ifjfLFkfr gks bl izdkj ds ftEesnkj vf/kdkjh ds Lrj dks ns[krs gq, fuUrkUr vokaNuh; gSA vr% eS jkT; ljdkj dk bl vksj /;ku vkdf"kZr djuk pkgwWaxk fd blls lEcU/k esa mDr vf/kdkjh ds fo:) mfpr dk;Zokgh dh tkos ftlls fd vf/kdkjh ;k >wBh fjiksVZ rS;kj u djs ;k U;k;ky; esa >wBs c;ku u gh nsA " 138. In our considered opinion, the observations made by the learned trial Judge are based record, proper and perfectly justified. The petitioner was holding responsible post of Tehsildar, but before the trial Judge, he gave his statement in a very careless and casual manner. He deposed against the contents of test identification parade memoes Ex.P. 20 and P 21 as also his order A to B which he passed on the back of application Ex.R 28, despite sufficient opportunity given to him during his cross examination. Even after refreshing his memory by seeing those documents, he did not reconcile the inconsistency and contradiction in his statement and contents of those documents. The learned trial judge has rightly held that either the petitioner deliberately gave false statement before him or had falsely mentioned wrong facts in his order on the back of application Ex.P. 28 and the test parade memoes Ex.R 20 and P. 21.139. It is needless to mention that role of the persons who conducts test identification parade is very important. He is expected to take all necessary precautions while conducting test parade. He is also required to depose correctly before the Court of law and not to deliberately make vague, confusing, inconsistent and contradictory statements against the contents of the documents prepared and order passed by him. He is expected to take all necessary precautions while conducting test parade. He is also required to depose correctly before the Court of law and not to deliberately make vague, confusing, inconsistent and contradictory statements against the contents of the documents prepared and order passed by him. The observations made by the learned trial Judge do not amount to abuse of process of law. We, therefore, do not find any valid and sufficient reason to expunge the impugned observations/remarks made by the trial Court against him. Hence this Cr. Misc. petition filed under section 482 Cr.P.C. deserves to be dismissed.140. The upshot of the above discussion is that (A) DB Criminal Appeal No. 501/95 filed by appellant Manish Dixit is partly allowed and his conviction & sentence for offence under Section 120-B IPC, are set-aside. Instead of convicting Under section 302/34, 364/34 & 397/34, IPC, Manish Dixit is hereby convicted for offences Under section 364, 397 and 302 IPC and sentenced as under 1. Under section 364 IPC- -Life imprisonment with a fine of Rs.1,000/-, in default of payment of fine, to further undergo six months' R.l. 2. Under section 397, IPC-Seven Year's Rigourous imprisonment with a fine of Rs.1,000/-, in default of payment of fine, to further undergo six month's R.l. 3. Under section 302, IPC-Life imprisonment with a fine of Rs.1,000/-, in default of payment of fine, to further undergo six months' R.l. His conviction & sentence for offence under Section 7/25 (1)(a) of the Arms Act are maintained. Manish Dixit is in jail. H.e be informed accordingly. (B) DB Criminal appeal No. 502/95 filed by appellant Sharad Dhakar is partly allowed, and his conviction and sentence for offences under Sections 302/34, 364/34, 397/34 and 120-B, IPC are set-aside and he is acquitted of the said offences. However, he is convicted for offence under Section 414, IPC and sentenced to under go three years' R.l. with a fine of Rs.1,000/- in default of payment of fine, to further undergo R.l. for six months. He is in jail and if he has undergone the sentence imposed upon him by this Court, he be released forthwith, if not required in any other case. (C) DB Criminal Appeal No. 514/97 filed by the State against Manish Dixit and Sharad Dhakar is partly allowed and both of them are convicted and sentenced for offences in the manner indicated above. (D) Criminal Misc. (C) DB Criminal Appeal No. 514/97 filed by the State against Manish Dixit and Sharad Dhakar is partly allowed and both of them are convicted and sentenced for offences in the manner indicated above. (D) Criminal Misc. Petition No. 856/95 filed petitioner PW 30 Devendra Kumar Sharma under section 482 Cr.RC. is hereby dismissed. *******