JUDGMENT 1. - This appeal arises out of the judgment of learned Additional Sessions Judge, Raisinghnagar dated 18.8.99 passed in Sessions Case No. 44/94, convicting appellant Harbans Singh, for the offence under Section 302/34 I.P.C. and sentencing him to imprisonment for life alongwith a fine of Rs. 5000/-, in default of payment of fine to undergo two years' simple imprisonment, and also convicting him for the offence under Section 394/34 I.P.C. and imposing another identical sentence. 2. Brief facts of the case are that on 18.2.94, one Amarjeet Singh, resident of 7-TK, submitted an oral report in the Police Station Raisinghnagar to the effect that at about 8-8.15 A.M., once Chandan Singh, milk vender, came to his house and informed that, when he had gone to fetch milk to 8-TK, he went to ease himself in the mustered field of the informant, situated on the road side, and on going little ahead in the field, his spotted dead body lying there. Thereupon, the informant alongwith Jernail Singh, Darbara Singh and Jeet Singh etc., went to the field, the other persons kept standing on the road, and the informant went in the field being Kila No. 5 of Murabba No. 57, and found the mustered crop damaged, and a dead body of one Sardar, aged about 17-18 years, lying there, and also noticed foot prints of two persons, and marks of dragging of some person. According to the informant, it appears that some unknown persons have committed the murder, and have concealed the dead body in his mustered field. 3. On this report, a case under section 302, 201 I.P.C. was registered and investigation commenced. After completing the investigation, the Police fired charge-sheet against the appellant Harbans Singh, and two other accused Buta Singh and Jagmel Singh @ Jagga, for the offence under Section 302, 394 I.P.C. 4. The learned Magistrate committed the case. On committal, the learned trial Court found the other two accused persons Buta Singh and Jagmel Singh to be juveniles, and ordered them to be tried by the Juvenile Court. However, the learned trial Court framed the charges against the appellant for the offence under Section 302/34 IPC so also Section 394/34 I.P.C. The accused denied the charges and claimed to be tried. 5. However, the learned trial Court framed the charges against the appellant for the offence under Section 302/34 IPC so also Section 394/34 I.P.C. The accused denied the charges and claimed to be tried. 5. During trial, the prosecution examined as many as 20 witnesses in the statement under Section 313 Cr.P.C. the accused took stand of denial, and contended that after being arrested, the SHO took him to 7-TK, and a false case has been prepared there. In defence, the appellant examined two witnesses, being Hakam Singh DW/1, and Gurmail Singh, DW/2. The prosecution also tendered in evidence some 49 documents, while the defence tendered in evidence 8 documents. After completing the trial, the learned trial Court convicted and sentenced the appellant as above. 6. A perusal of the charge shows that, the appellant had been charged for committing murder of the deceased Ranjeet Singh, in furtherance of common intention of all the other accused persons, and of committing robbery of camera valuing about 37,000/- rupees. 7. From the facts recapitulated above, it is clear that there is no direct evidence consisting of any eye-witness to establish the offence, and the case rests only on circumstantial evidence. 8. The evidence led by the prosecution during trial consists of, the deceased having been last seen alive in the company of the accused persons soon before the incident alongwith camera belonging to PW/1 Madho Singh. The other circumstances led upon is, recovery of the camera, on the information of, at the instance of, and from the exclusive possession of the appellant Harbans Singh shortly after the incident. The third evidence relied upon is, of identification of the accused persons, obviously as the persons last seen in the company of the deceased. (This evidence has been led because the identity of the accused was not previously known). The next circumstance led upon is, of the foot prints of the appellant having been found at the site, where the dead body was found, for which foot moulds were taken vide Ex. 14, 45 & 47. 9. It may be observed here that, from the post mortem report, and the evidence of Dr. Subhash Gupta PW/8, it is established that the deceased died homicidal death, as the result of shock resulting from multiple Injuries found on the dead body by the Medical Board. 14, 45 & 47. 9. It may be observed here that, from the post mortem report, and the evidence of Dr. Subhash Gupta PW/8, it is established that the deceased died homicidal death, as the result of shock resulting from multiple Injuries found on the dead body by the Medical Board. This aspect has not been assailed before us, and thus it is not disputed that the deceased died homicidal death. 10. The leaned trial Court has believed the existence of all the above circumstances to have been proved by evidence, and in the opinion of the learned trial Court these circumstances constituted requisite complete chain. 11. Assailing the impugned judgment, it is contended by the learned counsel for the appellant, that the learned trial Court has gone wrong in recording the conviction. It is contended that the evidence led to prove the deceased to have been last seen alive in the company of the appellant, even if taken on its face value, does not prove this fact. Then regarding recovery it is contended that the Camera was not put for test identification, nor was it exhibited to be the same as was recovered from the appellant, much less to be the same as was with the deceased at the time when he is alleged to have last been seen in the company of the appellant alive. Another limb of argument is that in any case there is nothing to show that the appellant could not come into possession of the Camera otherwise then by committing murder of the deceased. Regarding foot prints it is contended that there is no sufficient evidence to prove the prints to be that of the appellant. 12. On the other hand the learned Public Prosecutor supported the impugned judgment, and contended that all the circumstances relied upon by the learned trial court are satisfactorily established and the links so established form a complete chain, 'not only establishing the guilt of the appellant, but also negative his innocence on all reasonable hypothesis, and consequently the impugned judgment does not require any interference. 13. We have considered the rival submissions and have closely gone through the entire record. 14. 13. We have considered the rival submissions and have closely gone through the entire record. 14. Taking up the circumstance of the deceased to have been last seen alive in the company of the appellant, the accused was put to test identification parade vide Ex.P/6, and was purportedly identified by Ramswaroop, Ghanshyam, Sanjay Kumar and Jagdish. However, Ex.P/6 shows that, therein Ghanshyam had not identified the appellant Harbans Singh. The other three persons of course have identified the two accused persons, Harbans Singh and Buta Singh. Considering the evidence of these witnesses, as given in the Court, according to PW/12 Ramswaroop, he carries on a photographer's shop in the name of Karnal Studio. According to him, two persons came on the shop, one being Sardar and other shaved (Mona), and told him that they had effected booking for movie camera at village 6-TK, on the occasion of marriage of daughter of Baijeet Singh, at that time they paid Rs. 150/- more, and told that in the next morning about 7 A.M., they will come to take the person (camera man) and went away. He has then deposed that in the evening, Sanjay Kumar came, to whom he asked about the booking, who confirmed, and told that movie of Ranjeet Singh has been booked i.e. of Lalit Studio, and has identified the appellant to be the person who had paid Rs. 150/- on that day, and has also deposed that at that time, this person was Sardar, who is Mona now, and that the Mona person accompanying him at that time is not present in the Court. Even taking this statement of the witness on the face value, the deceased Ranjeet Singh did not accompany the accused persons, as the witness claims to have seen the person i.e. the accused person a day earlier and to be the person who had come on the shop to make further payment against the booking amount and does not depose to have seen these persons to have come in the next morning as assured to take Ranjeet Singh. Then taking of the evidence of Sanjay Kumar PW/3, this witness has deposed to be working on the Kamal Studio, belonging to Ramswaroop on 16.2.94. According to him, at about 9-10 PM. Then taking of the evidence of Sanjay Kumar PW/3, this witness has deposed to be working on the Kamal Studio, belonging to Ramswaroop on 16.2.94. According to him, at about 9-10 PM. on that day two persons (one Sardar and another Mona) came and asked as to whether camera is available for 17.2.94, as there is a bride's marriage in village 6-TK, whereupon the witness asked as to whether the customer is interested in still photography also, which was answered in negative, thereupon, the witness alleges to have gone to Lalit Studio and called Ranjeet Singh, and in view of his being available, the booking was accepted, and Rs. 100/- was paid as keenness money, then in the evening when he again came back on the shop, Ramswaroop Is said to have told that those persons have given Rs. 150/- money more, and agreed to come next morning at about 8 A.M. According to the witness, Ranjeet Singh did not return till evening of 17th, and on asking of Jagdish PW/2, the witness is said to have answered that, he might have gone to attend some booking. Then on 18th, the Police came to him to take some photographs of a dead body, whereupon he accompanied them, and took the photographs and identified the dead body to be of Ranjeet Singh. With this, the witness has purportedly produced the booking copy, and deposes to have identified the two accused persons, and the accused- appellant as Sardar. Suffice it to say that, even according to this witness, he did not see the deceased In the company of the accused persons, as he does not depose the accused persons to have come in the morning of 17th, and to have taken away Ranjeet Singh with them. So far as, the booking copy, Ex. 7 is concerned, that does not bear any signatures of any of the accused persons, and even according to this witness PW/3, the relevant entry is at page 44, which is practically the last page of the book, and purports to be an entry of 17.2.94, while on that very page above this entry, is the entry Ex. D/7, which Is for 26th and 27th February, 1994. D/7, which Is for 26th and 27th February, 1994. Not only this, the entire note book, right from page numbers 10 to 43, is blank and on page No. 9, are the entries for booking of 24.2.94, then on page No. 8 is the entry for booking of 17.2.94 being Ex.D/9, then on page No. 7 are the entries for booking of 15.2.94 and 16.2.94. In that view of the matter, since this witness in cross-examination has claimed this copy to be a regularly maintained daily account book, and has admitted the above entries, in our view, no reliance can be placed on this Ex. 7, to corroborate the bare ipsi-dixit of PW/3, thus this evidence also is of no consequence. 15. Then remains the evidence of PW/2 Jagdish, who is a neighbour of Madho Singh, the proprietor of Lalit Studio, on whose shop, the witness's elder brother Gaya Prasad was also working. According to the witness, on 16.2.94 Ranjeet Singh had taken a booking for preparing movie at 6-TK, as told to him by Ranjeet Singh though it was not disclosed as to who Is the customer. This was conveyed by the witness to Madho Singh. Madho Singh is said to have given the keys of the shop to the. witness, as Madho Singh had gone towards Ravla in the morning of 17.2.94. According to the witness, at about 7 A.M. on 17th Ranjeet Singh came on the studio, and packed camera and accessories in the meantime one Mona person came on the bicycle, and told Ranjeet Singh to make haste, as tractor is wafting near the gate, thereupon the witness and Ranjeet Singh proceeded on bicycle with camera and accessories alongwith Mona person. On reaching near the gate, he did not find any tractor, thereupon they offered to go by bus, but the Mona said that the tractor is just coming, in the meantime bus went away. At that time, one Sardar came on the bicycle, and informed that tractor will come after about 1-1 1/2 hour, and they would be getting late, thereupon Ranjeet Singh is said to have told about the availability of scooter on his residence and offered to bring it. With this, he handed over the goods i.e. camera and accessories to those two persons (accused persons). With this, he handed over the goods i.e. camera and accessories to those two persons (accused persons). An exception was taken by the witness, as to whether Ranjeet Singh knew these persons since before, and Ranjeet Singh disclosed them to be the acquaintance. Then, Ranjeet Singh and the witness went on his bicycle to village 22-PS, and came back to gate on the scooter, filled petrol and came to the two accused persons, and from that place, Ranjeet Singh, Mona and Sardar are alleged to have gone on the scooter alongwith movie camera and its accessories, then Ranjeet Singh did not return till evening. Thereupon, the witness thought that Ranjeet Singh may have gone to attend the marriage at the house of his maternal uncle in village 12-NK. It was on 18th that Sanjay Kumar informed him that Ranjeet Singh has been murdered, and the camera and attache were not available. With this deposition, the witness has deposed to have identified the present appellant as Sardar, in the test identification parade, and to be the person present in the Court. In the cross-examination he has admitted that, he did not remember as to what was the color of turban tied on the accused, though the other person who had been mixed were wearing either yellow turban or blue turban. According to PW/6, the appellant Harbans Singh was wearing purple turban: Be that as it may. Taking the evidence of this witness at the highest, the two accused persons, being appellant and Buta Singh, who were the old acquaintance of deceased Ranjeet Singh had left together on the morning of 17.2.94, and the deceased himself had handed over the camera and the attache to the accused persons, while going to fetch the scooter, and it is not shown that on return with scooter, he took back the camera and attache. We leave this link of evidence and circumstance at that only. 16. Taking of the circumstance of recovery, the F.I.R. was lodged on 18.2.94. The appellant was arrested on 21.2.94 at 2 PM. vide Ex.P/39, and on 21.2.94 itself is said to have given information purportedly under Section 27 of the Evidence Act being Ex. 46, and is alleged to have got recovered the camera from the shop of his Mama, being Siddhu Studio on 21.2.94 itself vide Ex.P/41. The appellant was arrested on 21.2.94 at 2 PM. vide Ex.P/39, and on 21.2.94 itself is said to have given information purportedly under Section 27 of the Evidence Act being Ex. 46, and is alleged to have got recovered the camera from the shop of his Mama, being Siddhu Studio on 21.2.94 itself vide Ex.P/41. Though the accused had denied the information and recovery, but then the same is proved by the evidence of PW/20, and the Investigating Officer. In that view of the matter, we proceed to consider the effect of this circumstance of recovery. A look at Ex. 46 shows that the only information given by the accused is, to have concealed one camera lying in the attache with its accessories, in the dark room of photographer's shop, and to be ready to get it recovered. But then even on reading the information memo in any manner we are unable to find anything in it which may tantamount to any admission/confession on the part of the appellant about the camera, or attache, or the accessories, to be those which were with Ranjeet Singh, or to have taken them from Ranjeet Singh by committing murder, or to have committed murder and/or robbery, for the purpose of taking away the camera. In that view of the matter, merely because some camera has been recovered pursuant to this information, this information cannot have any incriminating effect against the accused-appellant. 17. In this sequence, what is still more significant to note is that, recovery of camera was effected vide Ex. 41 and the articles were sealed, obviously on 21.2.94, itself and according to the prosecution these articles are said to be belonging to PW/1 Madho Singh. In this background, a look on the statement of Madho Singh, PW/1, or even that of the Investigating Officer, shows that this camera or attache or the accessories have not been put for test identification parade, to establish, to be the same articles, as were in possession of Ranjeet Singh, when he was last seen alive in the company of the accused persons. These articles have not been produced in the Court. These articles have not been produced in the Court. In that view of the matter, rather, as appears from Ex.P/2, that soon after the camera was recovered Madho Singh was in hurry to take away the camera and therefore, hurried to move application for being given the possession on `Supardginama', and for that purpose produced the affidavit from one Niranjan Singh, about Madho Singh having purchased the camera, and vide order dated 1.3.94, the articles were ordered to be delivered to Madho Singh. Though, Macho Singh in the end of examination-in-chief has deposed that, he has brought the camera etc., with him the Court, but then the same not been got exhibited. Not only this, the statement of Madho Singh was recorded on 8.4.96, and significantly the statement of PW/2, the witness of last seen, was also recorded on the same day i.e. 8.4.96, but then the camera etc., were not got identified by PW/2, to be the same as was carried by Ranjeet Singh, or the accused persons, at the time when the deceased was last seen alive in the company of the accused persons. 18. Thus, the net result of this discussion about the evidence of recovery is not established to be an incriminating circumstance. That apart, in view of the clear deposition of PW/2, about the deceased itself having handed over the camera etc., to the two accused persons, before moving to fetch the scooter, and in absence of any evidence about the camera etc., having ever come back in possession of the deceased, even if it were to be assumed that this was the same camera, and had been recovered from the possession of the accused-appellant, it cannot be inferred, much less concluded with certainty, that the accused-appellant could not come in possession of the articles otherwise then by committing murder of the deceased. At this place, we may also notice that even according to PW/2 after delivering the camera etc., to the accused persons Harbans Singh and Buta Singh, Ranjeet Singh and the witness had gone to village 22-PS to fetch the scooter, then they went to petrol pump, purchased petrol for the scooter, and came back. At this place, we may also notice that even according to PW/2 after delivering the camera etc., to the accused persons Harbans Singh and Buta Singh, Ranjeet Singh and the witness had gone to village 22-PS to fetch the scooter, then they went to petrol pump, purchased petrol for the scooter, and came back. In that view of the matter, since even according to the prosecution there did not exist any other motive for the appellant to commit the murder of the deceased, robbery of camera could hardly furnished any motive, as if the camera was the article to be looted, it was already given in actual physical possession of the accused persons by the deceased, and the accused persons had sufficiently long time at their disposal to escape away with the camera, instead of waiting for the arrival of Ranjeet Singh, then to take him away with them, and to kill him for the purpose of committing robbery of the camera. Thus, in the totality of the circumstances, the robbery of camera is wholly innocuous circumstance against the appellant. 19. Then we come to the evidence of foot prints said to have been found at the site. According to PW/20, the Investigating Officer, there were two foot prints of shoes and, therefore, he prepared moulds of plaster of paris, sealed those moulds vide Ex.P/14, then on 17.3.94 he got prepared the foot moulds of the appellant Harbans Singh, after making him wear the shoes, and sealed those moulds vide Ex.P/5. According to the prosecution vide Ex. 48, the F.S.L. report, the shoe, sole impression on the cast were found to match with each other, while Ex. 48 does not fully support it. In this sequence we further find that in the cross-examination the Investigating Officer has admitted that the moulds were lifted by his staff. Admittedly, the person who lifted the moulds has not been examined. Then what is still more significant to note is that in the arrest memo, Ex. 39, it has not been shown either that the accused was wearing shoes, or that any shoes were taken into custody from him, while according to Ex. 14, the site has been inspected on 18.2.94, and foot moulds have been taken from the spot on 18.2.94 itself. 39, it has not been shown either that the accused was wearing shoes, or that any shoes were taken into custody from him, while according to Ex. 14, the site has been inspected on 18.2.94, and foot moulds have been taken from the spot on 18.2.94 itself. In this very sequence, it is significant to notice, that the shoes of which the moulds have been taken for comparison with the prints found on the spot, have also not been produced before the Court, and admittedly, the prints alleged to have been found on the spot are not of bare foots. In such circumstances, we are not inclined to place any reliance, in favour of the prosecution on this alleged circumstance of taking foot prints moulds, and their identification by the F.S.L., to establish that the foot prints found on the spot, where the dead body was lying were of the appellant Harbans Singh. 20. The net result of the aforesaid discussion is that the circumstance relied-upon, being that of recovery of camera has been found to be wholly innocuous, circumstances of availability of foot prints of the appellants on the place where the dead body was found is not established, with the result that the circumstances remaining on the record do not establish the complete chain of circumstances, even so as to establish the guilt of the accused whether for the offence under Section 302 or for the offence under Section 394 I.P.C., much less does the chain negative the innocence of the accused on any reasonable hypothesis. Consequently, we find overselves unable to sustain the conviction. 21. The appeal is accordingly allowed. The impugned judgment dated 18.8.99 is set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case.Appeal Allowed - Conviction Set Aside. *******