JUDGMENT 1. - The appellants Rakesh and Rukman Singh have been convicted for the offence under Section 302 IPC and sentenced to imprisonment for life by the judgment of the learned Special Judge. S.C./S.T. (Prevention of Atrocities) Act Cases, Jodhpur dated 1.12.2000. 2. The factual scenario as emerged from the police investigation is that the deceased Durgesh aged 26 years resident of district Bharatpur was running a Medical Clinic in the rented premises of Om Prakash (P.W.2) at Mandore area in the City of Jodhpur. He was not holding any recognised medical degree for running such Clinic. His dead body was found near Narsing Vihaar, Lal Sagar, Mandore on 23.8.1999. AT some distance near Gokulji Ki Piao and along the road, three two wheelers viz: Motor Cycle No. RNN 8973 and two scooters bearing Nos. RNN 9889 and RL 19-5AM7031 were found lying. The Scooter No. RNN 9889 belonged to Madho Singh (P.W.15), whereas another vehicle No. RJ 19-5AM7031 was in the name of accused Bharat Solanki (since acquitted). On enquiry, it revealed from Madho Singh (PW. 15) that the said scooter was taken by his nephew appellant Rakesh at 6 P.M. who was accompanied by appellant Rukman Singh. Appellants Rakesh and Rukman were found absconding. According to Omprakash (P.W.2), the accused persons were seen moving around the Dispensary of deceased Durgesh for last 3-4 days. P.W.8 Jagdish telephoned at the Police Station. Mandore about the incident of murder. P. W. 18 Naga Ram, Incharge of the Police Station immediately reached on the spot. On his information, a case for the offence under section 302, 120-B IPC read with Section 3(2)(v) of the S.C./S.T. (Prevention of Atrocities) Act was registered. The police inspected the site and prepared the inspection memo and the inquest report. ON spot, a briefcase was also found belonging to the accused, which contained number of articles including bunch of photographs of number of ladies and girls which included photographs in which deceased was seen posed with certain girls. The police sent the dead body for autopsy. The appellants were arrested on 27.8.1999. The pant and shirt of the appellant Rukman from his person wearing were seized on 29th Aug. 1999. In pursuance of the information given by the appellant Rukman, a knife was recovered. Similarly in pursuance of the information given by accused Rakesh, a "khookhri" and pant and shirt were recovered. The appellants were arrested on 27.8.1999. The pant and shirt of the appellant Rukman from his person wearing were seized on 29th Aug. 1999. In pursuance of the information given by the appellant Rukman, a knife was recovered. Similarly in pursuance of the information given by accused Rakesh, a "khookhri" and pant and shirt were recovered. After usual investigation, the police laid chargesheet against three accused persons i.e. the appellants Rakesh, Rukman and Bharat Solanki for the offence under section 02, 302 read with 120-B IPC and Section 3(2)(v) of the S.C/S.T. (Prevention of Atrocities) Act. 3. The appellants denied the charges levelled against them and claimed trial. The prosecution support of the case, adduced oral and documentary evidence. P.W.2 Omprakash while admitted that the deceased was his tenant running a Clinic but denied to have given the statement to the effect that the appellants were seen moving around the Clinic for last 3-4 days, as such, he was declared hostile having not supported the prosecution case. P. W. 1 Gajendra Singh also did not support the prosecution case, and, as such, he was declared hostile. Another important witness P.W. 15 Madho Singh denied to have given the statement that his scooter was taken by the appellant Rakesh. He was also declared hostile. P.W.3 Sawal Singh, PW.12 Mangilal and P.W.13 Hukam Singh, who are motbirs of the recovery of incriminating articles, also did not support the prosecution case and, as such, they were also declared hostile. P.W.8 Jagdish Panwar denied to have given any information to the police, as such, he was also declared hostile. Thus, almost all material witnesses having not supported the prosecution case, were declared hostile. Nothing has been elicited in cross examination to support the prosecution case. 4. In statement under section 313 of the Code of Criminal Procedure, appellants denied the correctness of the prosecution evidence appearing against them. However, the trial Court considering the evidence of recovery of weapons of offence and the blood stained clothes, concluded that it was appellants Rakesh and Rukman, who committed the murder of Durgesh but acquitted as the third accused Bharat Solanki. The trial Court acquitted all the accused persons of the offence under section 120-B IPC and Section 3(2)(v) of the S.C.S.T. (Prevention of Atrocities) Act Cases. The appellants Rakesh and Rukman have been convicted and sentenced in the manner as aforesaid. 5. The trial Court acquitted all the accused persons of the offence under section 120-B IPC and Section 3(2)(v) of the S.C.S.T. (Prevention of Atrocities) Act Cases. The appellants Rakesh and Rukman have been convicted and sentenced in the manner as aforesaid. 5. It is not in dispute that deceased Durgesh died of homicidal death. The dead body found was identified by P.W.4 Gulab Singh and P.W.20 Babu Singh. On 25.8.99, brother of deceased i.e. Karwa Ram (P. W.5) arrived at Jodhpurand identified the body. The autopsy was conducted by P.W.10 Dr. Jagdish Jugtawat. He noticed the following ante mortem injuries vide Post Mortem report Ex.P.22 : "Incised wound 3cm x 2cm x muscle deep on Rt. scapula lower part; Incised wound 1cm x 1cm x muscle deep on Rt. scapula lower part laterally; Incised wound 6cm x2cm x muscle deep on Rt. side of chest lower part laterally; Incised wound 5cm x2cm x deep on Rt. side of back of chest medially lower 1/2 portion; Incised wound 2cm x1 cm x muscle deep on Rt. side of back of abdomen, lower part;' Incised wound 4cm x1 cm x deep on middle of back of chest obliquely lower part slightly on Rt. side; Incised wound 3cm x2cm x deep placed 2cm below injury No. 25; Incised wound 3cm x 1cm x muscle deep on Lt. side chest back middle of chest; Three incised wounds each 3cm x2cm, 2cm x2cm and 3cm x 11/2 cm x muscle deep on lt. side back of chest in middle; Incised wound 4cm x2cm x deep on Ltd. side of back of chest lower part near mid line; Incised wounds (Three) 4cm x2cm, 3cm x 11/2 cm, 3-1 /2cm x 2cm x muscle deep on Lt. side of back of abdomen; Incised wounds (Three) 3cm x21/2 cm, 31/2 cm x 2cm, 3cm x 1 cm x muscle deep on Ltd. scapuiar and shoulder." 6. In his opinion, the cause of death was shock and haemorrhage as a result of multiple injuries. 7. It is contended by Mr. Garg, learned counsel for the appellants, that the prosecution has miserably failed to prove the circumstances satisfactorily without completing the chain of circumstances so as to establish conclusively guilt of the accused. It is submitted that the prosecution has filled-in the missing links by manipulating the material documents. 7. It is contended by Mr. Garg, learned counsel for the appellants, that the prosecution has miserably failed to prove the circumstances satisfactorily without completing the chain of circumstances so as to establish conclusively guilt of the accused. It is submitted that the prosecution has filled-in the missing links by manipulating the material documents. He has pointedly invited our attention to the recovery memos of the knife and "khookhri". On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. 8. The trial Court adverted-to the following circumstances : "i) absconding of the accused; ii) recovery of knife and "khookhri" in pursuance of the information given by the appellants; iii) seizure of the blood stained clothes of deceased Durgesh; iv) recovery of blood stained clothes of deceased; v) presence of human blood on the recovered articles; and vi) homicidal death of deceased Durgesh." 9. In the instant case, as against both the appellants, the only important incriminating circumstances, which has been heavily relied upon by the prosecution, is the recovery of weapons of offence from each of the accused. 10. It is now well settled that discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused to it. There is no rule prohibiting conviction solely on the basis of recovery of incriminating article. It depends upon the quality of evidence in each case. 11. We proceed to deal with the case of each of the appellants separately.I. RUKMAN:He was arrested on 27.8.99 vide Ex.P. 15 by P. W. 19 Alok Srivastava, Dy. S.P. Two days after the incident i.e. on 29.8.99, he made a disclosure statement vide Ex.P.41 leading to recovery of knife in the presence of P. W. 12 Mangilal and P. W. 13 Hukam Singh. The knife was seized and packed on the spot vide Ex.P.23 and the same was kept in the Malkhana of the Police Station alongwith other seized articles. On serological examination, the blood stains on the knife were found to be of human origin vide Ex.P.45. Mr. M.L. Garg, learned counsel for the appellants, has invited our attention to the recovery memo Ex.P.23 and submitted that the paragraph with respect to recovery of knife has been inserted afterwards. On serological examination, the blood stains on the knife were found to be of human origin vide Ex.P.45. Mr. M.L. Garg, learned counsel for the appellants, has invited our attention to the recovery memo Ex.P.23 and submitted that the paragraph with respect to recovery of knife has been inserted afterwards. Having perused the recovery memo Ex.P.23, we find substance in the contention raised by the learned counsel. 12. The motbirs of the recovery memo P.W.12 Mangilal and P.W.13 Hukman Singh have also not supported the recovery. P.W. 12 Mangilal has stated that on 29.8.99, he was called at the Police Station. He put his signatures on the memo at the police station. He denied his presence anywhere outside the Police Station in connection with the recovery of any incriminating article. He denied recovery of knife in his presence. So, the witness was declared hostile by the prosecution. P.W.13 Hukam Singh has stated that he was taken to the Police Station by certain Constables. He put his signatures on certain papers at the Police Station itself. In the cross examination, he denied the suggestion that incriminating articles were recovered in his presence. 13. Another piece of circumstance pressed by the prosecution as against the appellant Rukman is the presence of blood spots on the pant and shirt at the time of arrest on 27.8.99. The pant and shirt Article A-3 were seized vide Ex.P.27. Both the articles were sent to the F.S.L. for chemical examination. On serological examination, blood stains on the pant and shirt were found to be of human origin. It may be recalled that the incident is alleged to have taken place on 23.8.99 and the accused was arrested after four days i.e. on 27.8.99. It is difficult to comprehend that the appellant would be moving around for complete four days with the blood stained clothes on body. Another significant aspect of the case is that the appellant Rukman was arrested on 27.8.99 at 8.30 vide Ex.P. 15. The description of clothes on the body of the appellant is noted in the arrest memo. It does not indicate the presence of blood stains on the clothes. Another significant aspect of the case is that the appellant Rukman was arrested on 27.8.99 at 8.30 vide Ex.P. 15. The description of clothes on the body of the appellant is noted in the arrest memo. It does not indicate the presence of blood stains on the clothes. The relevant portion of the memo is extracted as follows : " mijksDr eksrfcjku ds :c:] eqdnek&vuoku lnj esa erywc eqyfte gh :de.kflag mDr ds tqeZ mijksDr ls vkxkg dj] gLc dk;nk fxjQ~rkj dj] tkek ryk'kh fy[kkbZ xbZ gSA vykok dLrckr iks'khnxh ikl esa vU; dksbZ oLrq ugha feyh% uk gh rgchy iqfyl esa yh xbZA i'pkr~ esa dkyh iS.V] vklekuh pkSdM+hnkj cq'kVZ] Hkwjs jax dk v.Mjfo;j o ikoks esa LiksVZl 'kwg igus gSa] tks O;fDr fgQktr cnu ;Fkkor j[ks x;sA gqfy;k eqyfte gLc tsy gSA " 14. However, it is surprising that the seizure memo Ex.P.27 shows presence of blood stains on the clothes. The relevant portion of seizure memo Ex.P.27 is extracted as follows : " dgha&dgha /kqa/kys ls [kwu tSls /kCcs utj vkrs gSA " 15. The motbirs P.W. 12 Mangilaland P.W. 13 Hukam Singh have not supported the seizure of clothes. They have denied the seizure of clothes in their presence. It is surprising that when both the accused were arrested on 27.8.99 and if Rukman was wearing blood stained clothes. Why they were not seized and packed immediately on the same day and how blood spots on clothes have appeared after two days i.e. on 29.8.99. The delay seizure and abrupt appearance of blood spots on the clothes coupled with the fact that it is not corroborated by the panch witnesses P.W.12 Mangilal and P. W. 13 Hukam Singh, cast a serious doubt about the correctness of the circumstance of seizure of blood stained pant and shirt. Thus, the prosecution has failed to establish this piece of circumstance by reliable and clinching evidence.II. RAKESH 16. He was arrested on 27.8.99 vide Ex.P.16. The "khookhri" and sheath were recovered vide Ex.P.24 and 25 respectively in pursuance of disclosure statement Ex.P.42. On serological examination, the blood stains on the "khookhri" were found to be of human origin. Learned counsel has criticised the recovery of "khookhri" on two grounds. Firstly, the paragraph regarding recovery of "khookhri" and sheath appears to have been inserted afterwards and secondly, in the said paragraph, there is no mention of blood on the "khookhri". On serological examination, the blood stains on the "khookhri" were found to be of human origin. Learned counsel has criticised the recovery of "khookhri" on two grounds. Firstly, the paragraph regarding recovery of "khookhri" and sheath appears to have been inserted afterwards and secondly, in the said paragraph, there is no mention of blood on the "khookhri". For convenience, the relevant paragraph is extracted as follows : " ,d [kksdjh ftldh E;ku dkys peM+s dh gS ftl E;ku ij ihry dh dhys o vU; Iysx ( fu'kku ) ihry ds tM+s gS o usiky [kqnk gS rFkk E;ku ds mij nks NksVs&NksVs pkdw ydM+h ds gRFks ds yxs gS [kqdjh dh ewB] ydM+h dh gS o ihry e<+k gqvk gSA Qy ij eNfy;ksa dh vkd`fr;ksa mdsjh gqbZ gS o chp esa ls eksM+ fn;k gqvk gSA [kqdjh dk Qy pkj bUp pkSM+k o NCchl bap yEck gS o ,d rjQ ls /kkjnkj o vkxs ls uqdhyk gSA " 17. A bare look at the memo Ex.P.24, we find substance in the contention raised by the learned counsel. The paragraph regarding recovery of "khookhri" on face appears to have been inserted afterwards. There is also no mention of the blood on "khookhri". Though the accused was arrested on 27.8.99, recovery was effected after two days i.e. on 29.8.99. In pursuance of the information Ex.P.43 and shirt of the appellant Rakesh was recovered vide Ex.P.26. As per the FSL Report Ex.P.45, the original blood stains could not be determined on the pant. However, on shirt, the blood stains of human origin were found. It is significant to notice that in the seizure memo of shirt Ex.P.26, there is no mention of presence of blood. The relevant part is extracted as follows : " cq'kVZ&cq'kVZ dcwrjh jax dk iwjh vkLrhu dk gS] xys ds ihNs dh vksj dkWyj ds uhps ,Dl0,y0 VkWieSu dk LVhdj yxk gS o nkfguh vkLrhu dksguh dh txg ls jxM+ dj QVj gqbZ gSA " 18. The recovery is delayed by two days. Considering the fact that the recovery is delayed by two days and the fact that there is no mention of presence of blood on the shirt, we are of the view that this piece of circumstance also deserves to be rejected. 19. The recovery is delayed by two days. Considering the fact that the recovery is delayed by two days and the fact that there is no mention of presence of blood on the shirt, we are of the view that this piece of circumstance also deserves to be rejected. 19. In view of the doubtful and suspect nature of evidence sought to be relied upon by the prosecution to substantiate the circumstances in the instant case suffers from serious infirmities and lack of legal credibilities to merit acceptance. 20. Accordingly, we hold that the prosecution has failed to establish the charge against the appellants. The learned trial Judge has committed patent error in convicting the appellant on the charge of murder of Durgesh. 21. In view of the aforesaid discussion, we allow the appeal and set aside the judgment dated 1.12.2000 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur. Appellants Rakesh and Rukman Singh are acquitted of the charges levelled against them. They be set at liberty forthwith, if not required in any other case.Appeal allowed. *******