JUDGMENT 1. The present appeal is directed against the judgment of the learned Additional Sessions Judge (Fast Track) No.1, Sirohi Camp Abu Road in Sessions Case No. 92/2002 dated 20.9.03. Learned Additional Sessions Judge has convicted the accused appellant as under: Offences Punishment Section 302/34 IPC Life imprisonment and a fine of Rs.5,000/- each in default of payment of fine, one year additional imprisonment. Section 397 IPC Seven years Rl and a fine of Rs. 5000/-, in default of payment of fine, additional one year imprisonment. Section 201 IPC One year Rl and fine of Rs.1000/-, in default of payment of fine, six months additional imprisonment. 2. The prosecution was launched on the basis of a report Ex. P16 lodged by Amra Ram, Sarpanch, Gram Panchayat Aamthala at Police Station Abu Road Sadar on 14.5.2001 at about 12:00 Noon. It was given out by the 1 complainant that on 14.5.2001 at about 10:00 AM, he was at the bus stand Aamthala where, he heard that in the village Aamali Fali and Nopa Fali where, three roads meet, in the bushes a dead body wearing pant shirt is lying. After having received this information, he along with Secretary of the Gram Panchayat Shri Virendra Vyas went on the site and saw that a person wearing blue pant and light blue coloured shirt and black sandals in foot was lying dead in the thorny bushes. It was expressed that this person was killed sometime on 13.5.01 and 14.5.2001 and has been placed here. 3. On this information, a case was registered under Section 201/34 IPC and 397 IPC. At the investigation, three accused persons were traced to be accused being Kiran, Kailash and Umesh. The accused persons were charge-sheeted. They were made over to the trial where, the trial court framed charges against them under Sections 302/34, 201/34 and 395 IPC. At the trial, the prosecution examined 21 witnesses. The accused were examined under Section 313 Cr.PC. The accused appellant Kiran produced two witnesses in defence. 4. After considering the case of the prosecution, the trial court convicted the accused appellants as under : Name Offences Punishment Kiran, Kailash, Umesh Section 302/34 IPC Life imprisonment and a fine of Rs.5,000/- each in default of payment of fine, one year additional imprisonment. Kiran, Kailash, Umesh Section 397 IPC Seven years R1 and a fine of Rs. 4. After considering the case of the prosecution, the trial court convicted the accused appellants as under : Name Offences Punishment Kiran, Kailash, Umesh Section 302/34 IPC Life imprisonment and a fine of Rs.5,000/- each in default of payment of fine, one year additional imprisonment. Kiran, Kailash, Umesh Section 397 IPC Seven years R1 and a fine of Rs. 5000/-, in default of payment of fine, additional one year imprisonment. Kiran, Kailash, Umesh Section 201 IPC One year R1 and fine of Rs.1000/-, in default of payment of fine, six months additional imprisonment. 5. Against these conviction and sentence, two accused Kailash and Umesh have not preferred any appeal. This appeal is on behalf of the accused Kiran Kumar. The trial court after considering the case of the prosecution came to the conclusion that there is no direct evidence in the case. However, five circumstances were held proved against the accused persons : (i) On 13.05.2001, accused Kiran, Kailash and Umesh hired a taxi No. GJ-6/3222 at about 7.00 PM from Palanpur, whose driver was deceased Sadique. (ii) In morning of 14.05.2001, the dead body of driver Sadique was lying at Aamli Fali and Nopafali where, three roads meet. (iii) The death of the driver Sadique was caused by strangulation. (iv) On 16.05.2001, accused Kailash and Kiran were caught roaming with Sadique's vehicle Tata Estate in mysterious condition. Kailash and Kiran had changed the number plate. (v) From the possession of Kiran, the purse of the deceased containing Insurance of his vehicle No. GJ-6/3222 and photograph of deceased was recovered. From the possession of Kailash, ring of the deceased was recovered. 6. Arguing the case of the accused Kiran, the learned counsel for the appellant submitted that the five circumstances which have been held proved against the accused persons cannot be said to be proved against the accused appellant Kiran. The trial court itself has held that PW/1 Kadar Khan. PW/2 Arif Mohammad and PW/4 Mayub have positively identified the accused Kailash and Umesh @ Udayram. So far as the identification of Kiran is concerned, there was a lurking doubt in the mind of the trial court wherein, the trial court has expressed that though this is proved that those who came to engage the taxi were three persons namely, Kailash, Umesh and Kiran but this fact is found to be established on the basis of identification. Regarding identification, this has been observed that it was not established that the accused appellant Kiran was kept 'Baparda'. The trial court also found that the prosecution witnesses PW/1 Kadar Khan, PW/2 Arif Mohammad and PW/4 Uday Ram have given shaky statements about the identification of the accused Kiran. However, the trial court has observed that identity of two accused persons have been established beyond doubt. As regards the identity of the accused Kiran, learned counsel for the accused pointed out to the Court that PW/1 Kadar Khan in his examination has stated that Kailash and Umesh were two persons who came along with third to engage the vehicle but the third person i.e. Kiran did not come to engage the vehicle. Thus, this witness had exonerated Kiran with express exclusion. 7. PW/2 Mohammad Arif in his statement has said that the accused Kiran who is present in Court did not come to engage the vehicle. He asserted that though there were three persons who came to engage the vehicle but the accused Kiran present in Court was not there. 8. PW/4 Mayub in his statement stated that he can identify only Kailash to be one engaging the vehicle and regarding rest of the accused, he refused to saying anything. Thus, all the important witnesses who were the witnesses of identification have stated nothing against the accused Kiran. 9. In the aforesaid facts, the first circumstance which has been held proved against the accused cannot be considered to have been proved that it was the accused Kiran along with other two accused who came to engage the vehicle. The second circumstance held proved is that the driver was found at the intersection of three road at Aamali Fali and Nopa Fali. This is an innocuous circumstance as tar as present accused is concerned. The third circumstance is the fact that the deceased died due to strangulation. This circumstance becomes a benign circumstance as far as the accused appellant Kiran is concerned. 10. The fourth circumstance which has been held proved against the accused is that on 16.05.01, the accused were found in possession of the vehicle along with Kailash with changed number plate. The third circumstance is the fact that the deceased died due to strangulation. This circumstance becomes a benign circumstance as far as the accused appellant Kiran is concerned. 10. The fourth circumstance which has been held proved against the accused is that on 16.05.01, the accused were found in possession of the vehicle along with Kailash with changed number plate. Learned counsel for the appellant asserted that the accused can at best be said to be along with Kailash in the vehicle and when the vehicle was seized, it was not in his exclusive "possession and merely being with Kailash, it cannot be stated that it was in the exclusive possession of Kiran. When accused Kiran has not been identified and accused Kailash has been identified to be one who engaged the vehicle, it should only be believed that if the vehicle has anything to do with accused, it was with Kailash. 11. The fifth circumstance held proved against the accused is regarding recovery of a purse from which a photograph and insurance cover of vehicle was seized. Learned counsel asserted that this purse has not been properly 1 identified. The recovery of this purse at the instance of accused is doubtful The photograph of the deceased is not the photograph which was in the purse. According to the learned counsel, the photograph which has been recovered from the person of the deceased, that photograph has been produced by the prosecution and it is this photograph which has been 1 planted by the prosecution to connect this accused, otherwise, the connection of purse with the deceased cannot stand established. It is important to note that the information under Section 27 of the Evidence Act (Ex.30) as given by accused Kiran says that the purse has been taken by him from the dickey of the vehicle and Ex.P/31 is the recovery proceedings. If the purse was taken by the accused from the vehicle then, at best it can be said that he had an occasion to be in the vehicle. He was found in the vehicle then it can only be said that he had taken the purse then. If the purse was taken by the accused from the vehicle then, at best it can be said that he had an occasion to be in the vehicle. He was found in the vehicle then it can only be said that he had taken the purse then. In any case, even if this information is found to be established that the purse was taken by the accused from the car, as far as car is concerned, he had a ride with Kailash and this could come in his possession in that eventuality. Thus, the chain of circumstances fail to establish the connection of the accused with the murder of deceased Sadique and, therefore, the trial court has erred in convicting and sentencing the accused appellant. 12. Per contra, the learned Public Prosecutor submitted that in this case, the prosecution has succeeded in establishing the identity of the accused who engaged the car and thereafter, on the strength of recoveries the case of prosecution has been well established and in that background the findings of the trial court are sustainable. 13. We have given our thoughtful consideration and have carefully studied the record. The complexity of the accused Kiran in engaging the vehicle is the most important aspect of the circumstantial piece of evidence PW/1 Kadar Khan in his statement has stated : " xokg us dSyk'k o mes'k dh rjQ gkFk yxkdj dgk fd ;gh eqyfteku xkM+h ys tkus okyksa esa FksA rhljk vkneh eqyfte tks [kM+k gS mldks iqfyl LVs'ku ij crk;k FkkA og xkM+h djus ugha vk;k FkkA On further cross-examination, he stated that eqyfte fdju dks lcls igys iqfyl Fkkuk ij ns[kk FkkA PW/2 Mohammad Arif in his examination has stated that ;g lgh gS fd eqyfte gkftj vnkyr fdju lkFk esa xkM+h djus ugha vk;k FkkA vkt [kqn dgk fd O;fDr rhu Fks fdUrq fdju lkFk ugha vk;k FkkA PW/4 Mayub has stated that vfHk;qDr dSyk'k dh vksj b'kkjk dj xokg us dgk fd ;g rks eqyfte] ckr djus vkus okyksa esa FkkA 'ks"k nksuksa eqyfteku dks ns[kdj xokg us dgk fd buds ckjs esa eSa ugha crk ldrkA " 14. The statement of these witnesses exclude the presence of Kiran when the vehicle was engaged. In this background, the finding of the trial court and the circumstance No.1 quoted herein above stands established against the accused Kiran cannot be held proved. The statement of these witnesses exclude the presence of Kiran when the vehicle was engaged. In this background, the finding of the trial court and the circumstance No.1 quoted herein above stands established against the accused Kiran cannot be held proved. The other circumstance being circumstances no.2 & 3 are innocuous circumstances. They do not link the accused with the crime. Circumstance No.4 only speaks that the vehicle was being boarded by two persons including Kailash and Kiran. Merely by boarding, it cannot be said that Kiran was the culprit. The accused Kailash was said to be one of those who had engaged the vehicle, therefore, the status of Kiran could only be of a bystander or a fellow traveller with no purpose. The circumstance no.5 again is a circumstance which only says that according to the information of the accused under Section 27 of the Evidence Act, the purse was taken from the car. He was a passenger in the car and, therefore, it cannot be said that this establishes a connection of the accused appellant with the crime. The last two circumstances can at best be said to be creating a kind of suspicion which would be insufficient to establish that the accused appellant was with the other accused persons when the vehicle was engaged and driver was strangulated and in that background, the findings arrived at by the trial court fall short of a positive proof against the accused appellant and we are of considered opinion that the accused appellant is entitled to the benefit of doubt. 15. In the result, the appeal is allowed. The offence as held against the accused appellant cannot be said to have been established by chain of circumstances. Therefore, the conviction and sentence recorded against the accused appellant are liable to be set aside and accordingly set aside. Accused Kiran is behind the bars. He should be released forthwith, if not required in any other case.Appeal allowed - Conviction set aside. *******