JUDGMENT 1. - The instant appeal stems from the judgment dated June 5, 1998 passed by learned Additional Sessions Judge No.4, Kota in Sessions Case No. 108/96 whereby he convicted and sentenced the appellants as under:- Chhotu Lal & Raju @ Rajendra Kumar each U/s 302 IPC Life imprisonment with a fine of Rs. 2,000/-, in default of payment of fine to further undergo three months simple imprisonment. U/s 460 IPC 10 years rigorous imprisonment with a fine of Rs. 2,000/-, in default of payment of fine to further undergo three months simple imprisonment. U/s 382 IPC 5 years rigorous imprisonment with a fine of Rs. 1,000/-, in default of payment of fine to further undergo two months simple imprisonment. 2. All the substantive sentences were ordered to run concurrently. 3. Briefly stated the prosecution case is that the deceased Mathura Lal, by caste- Mali, R/o- Moikaian, RS. Bapawar Kalan (District Kota) was the partner in the agricultural land of Ramgopai Vijayvergiya (PW4) R/o- village Moikaian and both were having cordial relation. As all the members of the family of Ramgopal had gone out of their village, in the evening of July 15, 1995 Mathura Lal went at the house of Ramgopal for sleeping there. As he (the deceased Mathura Lal) did not come back at his house for taking lunch on July 16, 1995, PW 3 Lekhraj, who is grandson of Mathura Lal (Mathura Lals daughters son) went to the house of Ramgopai alongwith Madhusudan and found Mathura Lal dead. Dead body of Mathura Lal was lying in Tibari of Ramgopals house and it was soaked with blood. Thereafter Lekhraj went to the Police Station Bapawar Kalan and submitted a written report Ex. P 10 at 1:50 P.M. on July 16, 1995. On the basis of report Ex.R 10, a formal F.I.R. Ex.P 11 was written and the SHO, RS. Bapawar Kalan registered a case under Section 302 IPC and investigation commenced. In the course of investigation, the Investigating Officer PW 18 Raju Singh, SHO reached at the place of occurrence on July 16, 1995 and prepared Site Plan Ex.R 6. Inquest Report of the dead body of Mathura Lal Ex.R 5 was also prepared. From the place of occurrence blood was seized and sealed and the Investigating Officer prepared Seizure memo Ex.R7 same day at 5:30 PM. Inquest Report of the dead body of Mathura Lal Ex.R 5 was also prepared. From the place of occurrence blood was seized and sealed and the Investigating Officer prepared Seizure memo Ex.R7 same day at 5:30 PM. Autopsy on the dead body of Mathura Lal was conducted by PW 20 DR. Laxminath Meena, Medical Officer-in-charge, Community Health Center, Sangod and he prepared post-mortem report Ex.P.45. Baniyan which was wearing by the deceased was seized and sealed vide Ex.R8. As per the prosecution story, Ramgopai Vijayvergiya received information through one of his relatives at Railway Station, Kota about the murder of Mathura Lal and burglary in his house and he immediately returned to his village. On reaching at his house Ramgopai found that some ornaments, silver coins and Rs. 82,200/- in cash were also stolen and he submitted a list of stolen property to the Investigating Officer. The accused-appellants Raju @ Rajendra Kumar and Chhotu Lal were arrested on July 31,1995 vide Arrest Memos Ex.P. 32 and Ex.R 33 respectively. On the information of the appellant Chhotu Lal and at his instance, Gupti was recovered from his field on August 3, 1995 at 7:35 A.M. by the Investigating Office, who seized and sealed it vide Seizure Memo Ex.R 13. On the information of the appellant Raju and at his instance, Dhariya was recovered from the field belonging to Chhotu Lal by the Investigating Officer on August 3, 1995 at 9:50 A.M. which was seized and sealed by him vide Ex.R 14. As per prosecution, on the information of the appellants given from time to time to the Investigating Officer during police custody, some ornaments and Rs. 82,200/-in cash were recovered at the instance of the appellants from their houses and the field belonging to the appellant Chhotu Lal. The Investigating Officer seized and sealed these ornaments etc. vide Seizure Memos Ex.P. 15 to Ex.R 19. During identification proceedings conducted by the Executive Magistrate, Sangod PW 19 Kirodi Lal Meena, these ornaments were identified correctly by Ramgopai and his wife Gyankanwar @ Dankanwar who stated that these ornaments belonged to them. The Executive Magistrate prepared Identification Memos which are Ex.R 1 to Ex.R 4. Blood which was recovered from the place of occurrence, Baniyan belonging to the deceased, Gupti and Dhariya were sent to State Forensic Science Laboratory, Rajasthan, Jaipur for serological examination. The Executive Magistrate prepared Identification Memos which are Ex.R 1 to Ex.R 4. Blood which was recovered from the place of occurrence, Baniyan belonging to the deceased, Gupti and Dhariya were sent to State Forensic Science Laboratory, Rajasthan, Jaipur for serological examination. Blood stains were found on Baniyan and the origin of the stains on Gupti and Dhariya could not be determined as the stains were not sufficient for test. The statements of the witnesses were recorded under Section 161 Cr.P.C. On completion of the investigation, charge-sheet was laid in the Court of Judicial Magistrate, Sangod against the appellants who committed the case to the Court of Sessions Judge, Kota. On transfer the file was received by the learned Additional Sessions Judge No.3 Kota, who framed charges against the appellants under Sections 302, 382 and 460 IPC. The appellants denied the charges and claimed to be tried. Later on the file was transferred to the Court learned Additional Sessions Judge No.4, Kota. 4. The prosecution examined as many as 20 witnesses in support of its case. In their statements recorded under Section 313 Cr.RC., the appellants claimed innocence. No witnesses was examined in defence. 5. Learned Additional Sessions Judge after hearing the final submissions, convicted and sentenced the accused- appellants as indicated here-in-above. 6. There is no dispute that the deceased Mathura Lal met with homicidal death and this fact is established by the medical evidence on record. PW 20 Dr. Laxminath Meena stated that on July 16, 1995 he was posted as Medical Officer, C.H.C., Sangod and he conducted the post-mortem examination on the dead body of Mathura Lal S/o Nengaram, aged 65 years, R/o- Moikaian and found the following injuries:- EXTERNAL INJURIES (1) Stab wound 3/4" x ⅛" x 2" on left side of chest. (2) Stab wound 3/4" x ⅛" x 1 1/2" on left side of chest adjacent to injury No. 1. (3) Stab wound 1" x ⅛" x 2 1/2" on left side of chest just parallel to injury No. 2. (4) Stab wound 1" x 1/2" x 2" over left anterior axillary line in 6th inter costal space. (5) Stab wound 1" x 1/4" x 2" over left anterior axillary line in 5th inter costal space with cutting of the adjoining ribs (No. 5th and 6th ribs) vertical in direction. (4) Stab wound 1" x 1/2" x 2" over left anterior axillary line in 6th inter costal space. (5) Stab wound 1" x 1/4" x 2" over left anterior axillary line in 5th inter costal space with cutting of the adjoining ribs (No. 5th and 6th ribs) vertical in direction. (6) Stab wound 3/4" x 1/4" x 3" over left posterior axillary line, obliquely in dissection. INTERNAL INJURIES (1) 4th, 5th and 6th ribs of left side were cut. Left side of pleurae was ruptured. Left lung was also ruptured. Pericardium was full of blood. Right vertical was ruptured at its anterior wall at two places. Both chambers of heart were empty. 7. DR. Meena further stated that all the injuries were antemortem in nature and their duration was within 18 to 20 hours. The cause of death was injuries to the vital organs (heart and lung) causing haemorrhagic shock. He prepared the post-mortem report Ex.R 45. Injuries were caused by sharp and pointed weapon. 8. Learned Amicus Curiae did not challenge the testimony of Dr. Meena and in our opinion also he is a trust-worthy witness and his testimony can be relied upon. Thus, it has been proved beyond reasonable doubt by the prosecution that the deceased Mathura Lal met with the homicidal death. 9. The prosecution case rests upon the circumstantial evidence. 10. Now the question for consideration is whether the circumstances relied upon by the prosecution are sufficient to being home the charges levelled against the appellants. Where the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which the conclusion is drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent only with the hypothesis of the guilt and inconsistent with the innocence and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompressible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompressible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. Bearing in mind the aforesaid principle, we are examining the circumstances relied upon by the prosecution and the learned Additional Sessions Judge.Circumstance No.1- 11. PW 11 Durgalal stated that five months before the murder of Mathura Lal, the appellant Chhotu Lal had met him near the well belonging to Moti and told him that he intended to commit murder of Ramgopal Master (Ramgopal Vijayvergiya- PW 4). The appellant Chhotu Lal sought his help to commit this crime but he declined. He also stated that the appellant Chhotu Lal also informed him that there were gold and silver ornaments in the house of Ramgopal and he intended to steal them. Drugalal further stated that at that time, Khemchand was also present there. PW 15 Khemraj stated that prior to the murder of Mathura Lal, the appellant Chhotu Lal had told him that there was sufficient money in the house of Ramgopal Master and he intended to commit burglary and murder of Ramgopal. The appellant Chhotu Lal also sought his help but he declined. 12. We have considered the reliability of the aforementioned statements of Durgalal and Khemraj. In our considered opinion, these statements do not inspire confidence and they cannot be made basis of conviction of the appellants. PW 15 Khemraj did not state that PW 11 Durgalal was also present whereas Durgalal deposed that when the appellant Chhotu Lal sought his help to commit murder of Ramgopal, Khemchand @ Khemraj was also with them. Apart from this, PW 11 Durgalal did not state, that the appellant Chhotu Lal also had asked Khemchand @ Khemraj to help in commission of the murder of Ramgopal. In his cross-examination, PW 11 Durgalal admitted that the appellant Chhotu Lal had never met him prior to taking place of the alleged conversation. He also stated that he had never gone to the house of Chhotu Lal. In his cross-examination, PW 11 Durgalal admitted that the appellant Chhotu Lal had never met him prior to taking place of the alleged conversation. He also stated that he had never gone to the house of Chhotu Lal. In these circumstances, it cannot be believed that the appellant Chhotu Lal would disclose his intention to an unknown person to commit burglary in the house of Ramgopai and to commit his murder also. In his cross-examination, PW 15 Khemraj stated that he did not inform anybody about the alleged conversation which had taken place between him and the appellant. He also admitted that criminal cases of theft were pending against him. He also admitted that he and Durgalal were also summoned by the police for interrogation in connection with the murder of Mathura Lal. In his police statement Ex.D. 3 PW 11 Durgalal stated that he had committed theft of petty items. Looking to the past character of PW 11 Durgalal and PW 15 Khemchand @ Khemraj and other circumstances also, it cannot believed that the appeal Chhotu Lal had sought the help of these persons and disclosed his intention to commit burglary in the house of Ramgopai and to commit his murder. 13. For the reasons stated above, we come to the conclusion that the prosecution has failed to prove this circumstance against the appellants.Circumstance No. 2-Recovery of Dhariya and Gupti- 14. As per the prosecution case, on the information of the appellant Chhotu Lal and at his instance, Gupti was recovered from his field on August 3, 1995 at 7:35 A.M. by the I.O., who seized and sealed it vide Seizure Memo Ex.R 13 and on the information of the appellant Raju and at his instance, Dhariya was recovered from the field belonging to Chhotu Lal by the I.O. on the same day at 9:50 A.M. which was seized and sealed by him vide Ex.R 14. To prove the recovery of Dhariya and Gupti, the prosecution has produced PW 4 Ramgopai, PW 6 Mohan Lal (both Motbirs) and PW 18 Raju Singh, the Investigating Officer. As per their statements, Gupti 'was recovered from the field belonging to the appellant Chhotu Lal. It was concealed under a heap of rubbish from place A shown in Sketch map drawn on Seizure Memo Ex.R 13. As per their statements, Gupti 'was recovered from the field belonging to the appellant Chhotu Lal. It was concealed under a heap of rubbish from place A shown in Sketch map drawn on Seizure Memo Ex.R 13. Dhariya was also recovered from the same field which was allegedly concealed under a heap of rubbish from place A shown in Sketch map drawn on Seizure Memo Ex.R 14. In our opinion, the recovery of Dhariya and Gupti does not at all inspire confidence. It is unbelievable that the appellants who have alleged to use their weapons, would keep these weapons concealed in a open field under a heap of rubbish. Recovery of these weapons is said to be effected in presence of Ramgopai and Mohan Lal, Ramgopai was not an independent witness because burglary and murder was committed in his house. In his cross-examination, PW 6 Mohan Lal admitted that Ramgopai is his cousin and, therefore, he is also not an independent witness. The prosecution has given no explanation as to why the independent Motbirs were not procured by the Investigating Officer at the time of recovery of Dhariya and Gupti. Apart from this, both these weapons were allegedly recovered from two different places where these weapons were concealed under a heap of rubbish, but only one place was shown in the Sketch map drawn on Seizure Memos Ex.R 13 and Ex.R 14. This fact creates doubt in the alleged recovery of weapons. Moreover, the prosecution has failed to prove that these weapons were stained with human blood. In these facts and circumstances the recovery of weapons does not connect the appellants with the alleged crime and such piece of evidence cannot be made basis of conviction.Circumstance No. 3-Recovery of ornaments and cash. 15. As per version of PW 10 Om Prakash, PW 14 Jodhraj and PW 13 Raju Singh, the investigating Officer, on disclosure statements of the appellant Chhotu Lal which are Ex.R 34 and Ex.R 36 dated July 31, 1995, gold and silver ornaments and Rs. 20,000/- in cash were recovered from the house of the appellant Chhotu Lal vide Memo Ex.R 16. Gold and silver ornaments and Rs. 30,000/- in cash were recovered from the hollow trunk of mango tree standing in the field of the appellant Chhotu Lal vide Ex.P. 17. 20,000/- in cash were recovered from the house of the appellant Chhotu Lal vide Memo Ex.R 16. Gold and silver ornaments and Rs. 30,000/- in cash were recovered from the hollow trunk of mango tree standing in the field of the appellant Chhotu Lal vide Ex.P. 17. These recoveries are said to be made at the instance of the appellant Chhotu Lal and in presence of Om prakash and Jodhraj, Motbirs on July 31, 1995. According to the statements of the aforesaid witnesses, on disclosure statements Ex.R 35 and Ex.R 37 dated July 31, 1995 of the appellants Raju @ Rajendra given to the Investigating Officer Raju Singh during police custody, gold and silver ornaments and Rs. 11,000/- in cash were recovered from his house and gold and silver ornaments and Rs. 13,200/- in cash were recovered at the instance of the appellant Raju from the field belonging to the appellant Chhotu Lal which were concealed under a heap of rubbish near mango tree on July 31, 1995. As per prosecution, at the time of this recovery also, motbirs Omprakash and Jodhraj were present. PW 18 Raju Singh, the I.O. PW 10 Om Prakash and PW 6 Mohan Lal also stated that on August 4, 1995 in police custody, the appellant Chhotu Lal gave information Ex.R 40 for Rs. 6,000/- and on this disclosure statement, Rs. 6,000/- in cash were recovered from the house of the appellant Chhotu Lal in presence of Mohan Lal and Omprakash, motbirs. These ornaments and money are alleged to have been stolen from the house of Ramgopal Vijayvergiya in the night when Mathura Lal was murdered. The trial Court has placed great reliance on these recoveries for convicting the appellants. 16. We have given our thoughtful consideration to the aforementioned recoveries of ornaments and money. In our opinion, these recoveries of ornaments etc. are doubtful and cannot be relied upon to convict the appellants for the following reasons:- (i) Both the houses of the appellants Chhotu Lal and Raju as well as the field belonging to Chhotu Lal are situated in village Moikaian but motbirs Jodhraj and Om prakash belong to village Dungarpur and Bapawan. They are not the residents of village Moikaian. As already stated motbir Mohan Lal is a cousin of Ramgopal Vijayvergiya. They are not the residents of village Moikaian. As already stated motbir Mohan Lal is a cousin of Ramgopal Vijayvergiya. The prosecution has not given any reason for not procuring the attendance of independent witnesses as well as persons belonging to village Moikaian at the time of aforesaid recoveries. (ii) It has been alleged by the prosecution and as per the statement of Ramgopal, there are signatures of Ramgopal on some of the currency notes but, in our opinion, signatures of Ramgopal were obtained by the Investigating Officer after the alleged incident. PW 5 Ramgopal has admitted in his cross-examination that ornaments and currency notes were shown to him and his wife by the police in police station. (iii) It is unbelievable that some ornaments and money allegedly stolen from the house of Ramgopal were kept in their houses by the appellants and some ornaments and money were concealed in the field. (iv) The alleged place of concealment in the field was accessible to public. (v) PW 5 Ramgopal has stated that a list of stolen articles was handed-over by him to the Investigating Officer Raju Singh, S.H.O., PS Bapawr, but no such list was produced in the trial Court by the prosecution and, therefore, it is also doubtful whether the alleged burglary had taken place or not. (vi) Some ornaments and Rs. 20,000/- are alleged to have been recovered from one of the rooms of the appellant Chhotu Lals house on July 31, 1995 and thereafter Rs. 6,000/- in case are alleged to have been recovered from the same room on August 4,1995. Therefore, the alleged recovery of money on two different dates creates doubt in prosecution version. (vii) Some ornaments and Rs. 13,200/- in case allegedly concealed under a heap of rubbish are alleged to have been recovered from the field of the appellant Chhotulal and at the instance of the appellant Raju on July 31, 1995 whereas Gupti and Dhariya are alleged to have been recovered from the same heap of rubbish on August 3, 1995. (viii) Houses of the appellants and field belonging to the appellant Chhotu Lal are situated at a distance of 7-8 Kms. from police station Bapawar. According to prosecution, disclosure statements Ex.P. 34 to Ex. (viii) Houses of the appellants and field belonging to the appellant Chhotu Lal are situated at a distance of 7-8 Kms. from police station Bapawar. According to prosecution, disclosure statements Ex.P. 34 to Ex. R 37 were given by the appellants in police station Bapawar on July 31, 1995 and on the same day ornaments and money were recovered from the houses of the appellants and the field belonging to the appellant Chhotu Lal. As per Memos Ex.P. 34 to Ex.R 37, time of recording of these statements is 8:30 A.M., 10:30 A.M., 1:30 RM. and 3:25 P.M. respectively. As per recovery memos Ex.P. 16 to EX.R 19, time of recoveries is 9:20 A.M., 2:20 RM., 11:30 A.M. and 4:15 RM. respectively. According to the version of PW 18 Raju Singh, the Investigating Officer, after recording first disclosure statement he went to the place of recovery and came back at police station after recovery of ornaments, then second disclosure statement was recorded by him land again he reached at the place of recovery and returned to the police station after making recoveries of ornaments etc. Thereafter third disclosure statement was given by the appellant and he again went to the place of recovery of articles and came back and again the last and fourth disclosure statement was recorded by him and he again left the police station for recovery. In our opinion, such type of alleged recoveries do not at all inspire confidence. 17. For the aforesaid reasons, it cannot be believed that ornaments and money alleged to have been stolen from the house of Ramgopai were recovered on the disclosure statements of the appellants and at their instance. Apart from this, money is un-ideritifiable. So far as ornaments are concerned, PW 5 Ramgopai has admitted in his cross-examination that these ornaments were shown to him and his wife Gyan Kanwar @ Dan Kanwar by the police in police station Bapawar and, therefore, identification of these articles by Ramgopai and his wife as the ornaments belonging to them, during identification proceedings conducted by the Executive Magistrate, has no evidentiary value. 18. In view of the above discussions, we have come to the conclusion that the prosecution has failed to prove this circumstance also. 19. No other circumstance has been relied upon by the prosecution. 18. In view of the above discussions, we have come to the conclusion that the prosecution has failed to prove this circumstance also. 19. No other circumstance has been relied upon by the prosecution. As there is no direct and circumstantial evidence against the appellants, their conviction cannot be maintained and their appeal deserves to be allowed. 20. Consequently, the appeal of the appellants Chhotu Lal and Raju @ Rajendra Kumar is allowed and they are acquitted of the charges under Sections 460, 382 and 302 IPC. The judgment of their conviction and sentence dated June 5, 1998 passed by learned Additional Sessions Judge No. 4, Kota is set aside. The appellants are in judicial custody, they shall be released forthwith, if not required in any other case.Appeal allowed. *******