Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 189 (MP)

Chandra Kumar Kankariya v. State of M. P.

2006-02-02

DEEPAK VERMA, RAKESH SAKSENA

body2006
JUDGMENT Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 22.11.1991 passed by the Second Additional Sessions Judge, Balaghat, in ST No.32 of 1991 convicting the appellants under sections 302/34, and 201 of IPC and sentencing them to imprisonment for life and rigorous imprisonment for five years respectively. Appellant No.1 Chandra Kumar has been further convicted under section 404 of IPC and sentenced to RI for three years. 2. Briefly stated, the prosecution story is that on 24.10.1990 at about 4:00 p.m. Girish Kumar Tiwari (deceased) had left his house on his Rajdoot Motorcycle No.CIJ-391. When he did not return till late in night, his wife Smt. Roopa Tiwari informed Girish's cousin Pramod Tiwari at about 10-11 O'clock in night. She informed him that Girish had told her that he was going to fetch money from Pragati Plastic Factory, Bhatera. When Girish had gone from house, he had been wearing brown shirt, black terricot full-pant, a gold chain, two gold rings and a wrist watch. On search, when he was not found, on 25.10.1990 Pramod Tiwari lodged the report about his missing at Police Station Balaghat, which was recorded at Rajnamcha No.2099. On getting information that Girish had met accused Chandra Kumar on 24.10.1990 in Pragati Plastic Factory, police interrogated Chandra Kumar on 25th and 26th October, 1990. On facts emerging out of inquiry, police found it to be a case of abduction and registered a case under section 364 of IPC. On 27.10.1990, during investigation, it was disclosed that accused Chandra Kumar and other accused persons had murdered Girish Tiwari in Pragati Plastic Factory, Bhatera, and had concealed the dead body wrapped in a gunny bag in a Nala near Sonbehri. On information of accused Chandra Kumar recorded under section 27 of the Evidence Act and at his instance the dead body was recovered from Sonbehri Nala and a case under murg was registered. 3. During investigation, on the information of accused Chandra Kumar a gold chain, gold rings, silver locket and Rs.500/- cash of deceased were recovered from his house and a register of accounts belonging to deceased was seized from the house of Hansmukh Katre. At the instance of accused Babboo @ Maqbool blood stained clothes, which he was wearing at the time of occurrence and on iron rod were seized. At the instance of accused Babboo @ Maqbool blood stained clothes, which he was wearing at the time of occurrence and on iron rod were seized. On the information of accused Hamid, motorcycle of deceased was seized lying near by the Nala and his blood stained clothes were also seized. At the instance of accused Malla (Bhalla) @ Devendra an electric wire which was allegedly used for tying the dead body on the motorcycle and his blood stained clothes were recovered. A carpet, cement plaster of the floor, marble tiles and an iron rod were seized from the Pragati Plastic Factory. The seized articles were sent to FSL Sagar and to FSL Kolkata for serological examination. 4. Gold chain, two gold rings and a silver locket, recovered at the instance of accused Chandra Kumar, were put up for test identification by Smt. Roopa Tiwati and Madan Lal Soni who identified the same to be of Girish Kumar. Dead body was sent for post-mortem examination to District Hospital, Balaghat, where Dr. N.K. Harinkhede, Assistant Surgeon, found that the dead body was highly decomposed and was in unrecognizable condition, eye balls protruded out; tongue was swollen and the whole body was discoloured, foul smell was spreading and meggots were present. Vide his report EX.P-32 four lacerated wounds on the frontal, parietal and occipital region of the skull with fractures of underlying bones and tear of duramatter were found, subdural haematoma with liquified brain matter was coming out. According to him, the cause of death was multiple injuries over the scalp and fractures of skull bones. The injures were caused by hard and blunt object and were ante mortem in nature. 5. After investigation the charge-sheet was filed before the Court of Chief Judicial Magistrate, Balaghat and the case was committed for trial. The trial Court framed the charges under section 302 read with section 34 and 201 of IPC against accused Babboo, Hamid and Malla and under sections 302, 201 and 404 of IPC against accused Chandra Kumar. Accused abjured their guilt and pleaded false implication. 6. Prosecution examined 23 witnesses to bring home the charge against the accused persons. Learned trial Court on appreciation of evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. Learned senior counsel for the appellants Mr. Accused abjured their guilt and pleaded false implication. 6. Prosecution examined 23 witnesses to bring home the charge against the accused persons. Learned trial Court on appreciation of evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. Learned senior counsel for the appellants Mr. Surendra Singh challenged the conviction of the appellants on the ground that it was not proved that the deceased was murdered in the factory of appellant Chandra Kumar. He submitted that from the prosecution evidence it was not proved as to when the deceased had entered the factory and at that time appellants were also present there. There is no direct evidence against the appellants of their having caused death of deceased inside the factory. He submitted that since the case is based on circumstantial evidence only, the circumstances sought to be proved by the prosecution ought to have been proved with cogent and reliable evidence. According to him, there is no evidence that the deceased was last seen with the accused persons inside the factory. He submitted that the recovery of the dead body of the deceased was from an open place and was not sufficient for holding the appellants guilty for murder. Recovery of ornaments belonging to deceased from the house of appellant Chandra Kumar could at the most make him liable for the offence under section 404 of IPC, but cannot be taken as a proof of murder by him. He submitted that the recovery of blood stained clothes and the register at the instance of Chandra Kumar from the house of Hansmukh Katre is false and fabricated and no inference is permissible to be drawn against him on that basis. Hansmukh Katre has not been examined as a witness, therefore, recovery of register from his house cannot be attributed to the exclusive knowledge of appellant Chandra Kumar. Learned counsel further submitted that the recovery of blood stained clothes at the instance of accused persons and an iron rod at the instance of appellant Babboo @ Maqbook cannot be taken as an incriminating circumstance as except on two shirts no human blood was found on them. The human blood found on two shirt was also not proved to be that a deceased. The human blood found on two shirt was also not proved to be that a deceased. According to him, the recovery of motorcycle of deceased near Nala is also not incriminating against accused Hamid as it was recovered from an open place accessible to all. On the basis of aforesaid circumstances learned counsel submitted that the case against the appellants was not proved beyond reasonable doubt and they were liable to be acquitted. 8. Per contra, learned counsel for the State Mr. T.K. Modh, Deputy Advocate General submitted that the recovery of the dead body at the instance of appellant Chandra Kumar coupled with recovery of ornaments of deceased at his instance from his house and recovery of account register belonging to deceased from the house of Hansmukh Katre is sufficient to hold him guilty of the murder. He submitted that from the evidence of Mahipal (PW8) and Gendlal (PW20), it was proved that deceased had come to the factory of appellant Chandra Kumar and had met him there. Mahesh (PW6) had heard cries coming from the factory. He submitted that the evidence of Mahipal (PW8) was reliable and sufficient to prove that accused Babboo, Hamid and Malla had gone to the factory along with appellant Chandra Kumar at the relevant time. Learned counsel submitted that recoveries of dead body and the ornaments belonging to deceased at the instance of appellant Chandra Kumar were alone sufficient for holding him guilty of murder of Girish Kumar Tiwari. 9. We have heard arguments of learned counsel of both sides at length and perused the evidence on record. According to prosecution, the motive for the murder of Girish Kumar was that the appellant Chandra Kumar did not want to pay back the amount of Rs.75,000/-, which was advanced to him by the deceased as a loan. For proving this, prosecution examined Smt. Roopa, wife of the deceased (PW9) and Kailash Kumar (PW2). Smt. Roopa Tiwari deposed that about two and a half years ago deceased had given Rs.50,000/- to Chandra Kumar by way of loan. This transaction was recorded on a stamp. According to her, this transaction was witnessed by Kailash Namdeo. This fact finds corroboration from the evidence of Kailash Kumar (PW2), who deposed that before him Girish Tiwari had given Rs.50,000/- to appellant Chandra Kumar by way of loan. He also deposed that the transaction was recorded on the stamp. This transaction was recorded on a stamp. According to her, this transaction was witnessed by Kailash Namdeo. This fact finds corroboration from the evidence of Kailash Kumar (PW2), who deposed that before him Girish Tiwari had given Rs.50,000/- to appellant Chandra Kumar by way of loan. He also deposed that the transaction was recorded on the stamp. Smt. Roopa Tiwari stated that after a few days Chandra Kumar had further obtained Rs.25,000/- from her husband as loan, but when her husband demanded his amount back, he avoided on some pretext or other, though he used to pay some meagre amount towards interest. This fact is also corroborated by the evidence of Kailash Kumar (PW2). From the evidence of Smt. Roopa Tiwari and Kailash Kumar it is established that the appellant Chandra Kumar had taken loan from deceased Girish Tiwari but avoided its repayment. 10. As far as question of deceased's going to the factory of appellant Chandra Kumar and his being seen last with the appellant is concerned, the prosecution has adduced the evidence of Smt. Roopa (PW9), Pramod Tiwari (PW1), Sunil Verma (PW3), Vijay Verma (PW5), Mahipal (PW8) and Gendlal (PW21). Smt. Roopa (PW9) has deposed that her husband (deceased) had gone to the factory of Chandu Kankariya by his motorcycle informing her that he was going to said factory for taking his money back from Chandu Kankariya. When he did not return home, at about 11 O'clock in the night, she informed her jeth Pramod Kumar Tiwari that Girish Kumar, who had gone to the factory of Chandu Kankariya, had not returned. This fact is corroborated by the evidence of Pramod Kumar (PW1), who in his statement said that Smt. Roopa Tiwari had told him that Girish had gone at about 4:00 O'clock saying that he was going to factory of Chandra Kant. Pramod Kumar deposed that when he went to Chandra Kant and inquired from him about Girish, Chandra Kant told him that Girish had not met him. Sunil Verma (PW3) and Vijay Verma (PW5) deposed that Pramod Tiwari had come to their house and informed that Girish was missing and that he had gone from his house after informing his wife that he was going to Pragati Plastic Industry, Bhatera, but he did not return. Sunil Verma (PW3) and Vijay Verma (PW5) deposed that Pramod Tiwari had come to their house and informed that Girish was missing and that he had gone from his house after informing his wife that he was going to Pragati Plastic Industry, Bhatera, but he did not return. Both of them deposed that they had met Gendlal, who lived at Bhatera and who also informed them that he had seen Girish Tiwari going towards plastic factory. Sunil Verma (PW3) deposed that Gendlal had informed him that he had seen Girish in the factory of Chandra Kumar and the same was deposed by Vijay Verma (PW5). When we come to the evidence of Gendlal (PW21) it is seen that he deposed that he saw deceased near the polythene factory and on his asking said that he had some work in the factory and thereafter parked his motorcycle there and went inside the factory. In cross-examination he was confronted with his police statement (Ex.D-14) where it was missing that the deceased had parked his motorcycle in front of the factory and went inside. Besides this, on perusal of the evidence of Mahipal Lithare (PW8) it is found that around 4 or 4:15 p.m. accused Chandu Kankariya and Girish Tiwari had come from the direction of Balaghat and had gone in the factory. Apparently, the evidence of Gandlal and Mahipal is contradictory to each other. According to Gendlal, deceased had come all alone on the motorcycle and had gone inside the factory after parking his motorcycle in front of the factory, whereas according to Mahipal, deceased and appellant Chandra Kumar had come together and had gone inside the factory. Thus, the evidence of Gendlal as well as Mahipal, both, become doubtful. Mahipal has further deposed that he had seen accused Babboo @ Maqbool, Malla @ Devendra and Abdul Hamid going in the said factory on 24.10.1990 at about 2:30 p.m. At that time accused Chandu Kankariya had come at his floor mill situated nearby the factory. When accused Babboo, Malla and Hamid had come at the factory, appellant had gone and talked to them and then all of them had gone in the factory. The evidence of this witness is somewhat discrepant. He has not said that appellant Chandra Kumar had gone out of the factory and had again come with the deceased. When accused Babboo, Malla and Hamid had come at the factory, appellant had gone and talked to them and then all of them had gone in the factory. The evidence of this witness is somewhat discrepant. He has not said that appellant Chandra Kumar had gone out of the factory and had again come with the deceased. It is also important to note that except appellant Chandra Kumar no other appellants were known to him. He did not know their names. He for the first time identified these persons before the Court. Learned counsel for the appellants submitted that these three appellants were not put to test identification parade before their identification by this witness in Court. Therefore, the evidence of this witness with respect to the identification of these three persons is doubtful and not free from suspicion, specially when the conduct of this witness shows that he is an interested witness. The fact that deceased and accused Chandra Kumar had gone inside the factory together is an omission in his police statement (Ex.D-10) and the statement (Ex.D-11) recorded by the Magistrate under section 164 of CrPC. This witness has gone to the extent of saying that grand-father of appellant Chandu and relatives of other accused had come to him and had pressurised him to resile from his evidence and had offered him Rs.50,000/- for that purpose. He said, when they abused him, he beat them and also lodged a report with the police. No such report was produced by him before the Court. According to this witness, he suspected that Girish Tiwari had been murdered and he had discussed in that regard with Amilal and Mahesh and had also gone to police station and informed them. All the above facts disclosed by him in the chief examination, have been found missing in the statement recorded under section 161, Criminal Procedure Code. In para 23 of his statement he admitted that deceased was a good player of Hockey and he used to meet him frequently as he liked him. He also admitted that number of criminal cases were pending against him. Thus, on critical appreciation of evidence of this witness, his evidence does not appear to be credit worthy. From the evidence of Gendlal (PW21) and Mahipal (PW8) it cannot be held with certainty that they had seen the appellants with deceased in the factory. He also admitted that number of criminal cases were pending against him. Thus, on critical appreciation of evidence of this witness, his evidence does not appear to be credit worthy. From the evidence of Gendlal (PW21) and Mahipal (PW8) it cannot be held with certainty that they had seen the appellants with deceased in the factory. Thus, in our opinion, the prosecution has failed to prove beyond a reasonable doubt that the appellant were last seen together with the deceased. 11. Mahesh (PW6) has deposed that on 24.10.1990 between 4:30 to 5:00 p.m. when he was taking his meals at his flour mill, he had heard cries from the factory of Chandra Kumar and with that volume of Tape Recorder sound had gone high. When he rushed towards the factory, he found the gate of the factory locked, though the owner of the factory viz., Chandra Kumar was inside the factory. When he asked Chandra Kumar shout the cries, Chandra Kumar told him that his operator was creating nuisance after consuming liquor, therefore, they had shut him inside a room. On cross-examination, it is revealed that the house of this witness is situated about half a kilometer away from the flour mill. His version in his police statement (Ex.D-7) was that he was taking his meals at his house. He was duly confronted with his earlier version but he failed to explain the discrepancy. This witness is an employee of Mahipal (PW8) whose evidence we have already found unworthy of credence. Evidence of this witness also does not inspire confidence. 12. By the evidence of Amilal Garare (PW3), who happened to be a worker of the factory of Chandra Kumar, the prosecution has tried to show that the dead body of the deceased was taken away from the factory on a motorcycle by two persons and at that time appellant Chandra Kumar was also in the factory and after some time he had also gone in the same direction on his scooter. According to him, on 24.10.1990 at about 6 O'clock, in the evening appellant Chandra Kumar had asked for a torch from him as his house is situated at a distance of about 150 meters from the factory. When he was going to give the torch to Chandra Kumar, he had seen two persons taking a motorcycle, on which some heavy luggage was tied. When he was going to give the torch to Chandra Kumar, he had seen two persons taking a motorcycle, on which some heavy luggage was tied. One person was sitting on the motorcycle and another person was pushing it. Motorcycle had come out of the factory and had passed in front of his house. When the motorcycle started, another person also sat on the motorcycle. After about 15 minutes of it Chandra Kumar had come to him and asked for a cup of tea, but as there was no milk in the hotel, tea could not be prepared. Thereafter Chandra Kumar along with a man went on his scooter in the direction in which the motorcycle had gone. On appreciation of evidence of this witness we find it neither here nor there. He did not say that the persons who had gone on the motorcycle were the accused nor he said that appellant Chandra Kumar had gone with them. He did not say that the heavy load, which was being carried on the motorcycle, was dead body of deceased. If some heavy load was being taken out of the factory, there was nothing strange in it. He has not indicated that the motorcycle on which the load was carried was body of deceased. In the absence of any incriminating indication, evidence of this witness cannot be considered as an incriminating circumstance against the appellants. 13. According to Salim Khan, Investigating Officer (PW23), on 27.10.1990, he along with accused persons had gone to Pragati Plastic Factory, Bhatera, and after its inspection had seized a portion of the flour on which he was blood like spots. He also seized a carpet, a tile, and steel rod fixed in a machine which appeared to be stained with blood. These articles were sent to FSL for chemical examination and serological examination, but as per Serologist's report (Ex.P-47) the blood stains on the aforesaid articles were found disintegrated and their origin could not be detected. Thus, it was not established that human blood was found at the said spot. Accordingly, it cannot be held established that the deceased was murdered in the factory as arrived by the prosecution. 14. On coming to question of recovery of the dead body of deceased on the information of appellant Chandra Kumar it is seen that on 27.10.1990 Salim Khan, Investigating Officer (PW23) had arrested Chandra Kumar. Accordingly, it cannot be held established that the deceased was murdered in the factory as arrived by the prosecution. 14. On coming to question of recovery of the dead body of deceased on the information of appellant Chandra Kumar it is seen that on 27.10.1990 Salim Khan, Investigating Officer (PW23) had arrested Chandra Kumar. On interrogation Chandra Kumar disclosed that he had concealed the dead body of Girish Kumar near Nala of Sonbehri and had kept the ornaments of deceased in a safe of almirah in his house. It is also said that he had disclosed that he had concealed the dead body after wrapping it in the gunny bag. This information was recorded in memo (Ex.P-9) before Ashok Kumar Charles (PW 11). Thereafter all the accused persons were taken in a jeep towards Sonbehri Nala where Chandra Kumar took them about 100 ft. away from the road and pointed out the dead body lying near the Nala surrounded by bushes. Ashok Kumar (PW 11) deposed that Chandra Kumar had disclosed that the dead body had been thrown near the Nala and that at his instance it was recovered from there. 15. Learned counsel for the appellants submitted that appellant Chandra Kumar cannot be held liable for commission of murder of deceased merely on the ground of recovery of the dead body at his instance. He submitted that the recovery of the dead body was from an open place which was not shrouded by anything. It was neither buried nor covered by anything so as to give rise to inference of the exclusive knowledge of the appellant. As deposed by Dr. Harinkhede (PW18) the body was in a decomposed condition emitting fowl smell. It was found just about 65 feet away from road near the Nala, which could have been noted by anyone. Mere knowledge about the presence of dead body at that spot could not have given rise to the inference that the appellant was the author of the crime. Learned counsel placed reliance on Kanbi Karan Jatav v. State of Gujarat [ AIR 1966 SC 821 ], where it was held that the mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. Learned counsel placed reliance on Kanbi Karan Jatav v. State of Gujarat [ AIR 1966 SC 821 ], where it was held that the mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. In Bakshish Singh v. The State of Punjab [ AIR 1971 SC 2016 ], the apex Court observed that recovery of the dead body at the instance of accused is not a conclusive circumstance that he committed the murder. The apex Court further observed : "8. Therefore, the only incriminating evidence against the appellant is his pointing the place where the dead body of the deceased had been thrown. This, in our opinion, is not a conclusive circumstance though undoubtedly it raises a strong suspicion against the appellant. Even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown." In the case of circumstantial evidence the law is well settled. The circumstances put forward by the prosecution must be satisfactorily proved and should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused so as to exclude every hypothesis incompatible with his innocence. 16. Learned counsel for the appellants, for interpretation of the word 'open place', placed reliance on State of Maharashtra v. Bharat Fakira Dhiwar [ AIR 2002 SC 16 ], wherein the apex Court approved the observations made in the case of State of H.P. v. Jeet Singh reported in (1999)4 SCC 370 holding : "27. There is nothing in S.27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under S.27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under S.27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." In view of the above proposition, if we examine the evidence of Ashok Kumar Charies (PW11), it is seen that the dead body was not covered with anything and was lying in open. It was lying near Nala which was an open place near the road, therefore, it is not possible to conclude that it was only appellant Chandra Kumar, who alone knew about the presence of dead body lying there. In the aforesaid background, the circumstance of recovery of the dead body at the instance of appellant Chandra Kumar cannot be taken to be a conclusive incrimination piece of evidence pointing to his guilt. Another fact which makes the theory of throwing of dead body by appellant Chandra Kumar doubtful is that as per prosecution case other accused persons had taken away the dead body from the factory on motorcycle after wrapping it in gunny bag, but the dead body was found in the Nala without gunny bag and the gunny bag was found at a different place near Sonbehri Nala which was recovered at the instance of accused Malla. It does not stand to reason as to why the appellant would have unwrapped the dead body before throwing it in Nala which they, in fact, would have liked to conceal. 17. It does not stand to reason as to why the appellant would have unwrapped the dead body before throwing it in Nala which they, in fact, would have liked to conceal. 17. Another piece of evidence against appellant Chandra Kumar on which prosecution placed reliance is the recovery of gold ornaments from the safe of his Almirah kept in his house. Salim Khan, Investigating Officer (PW23) deposed that Chandra Kumar had disclosed that he had kept a gold chain, gold rings and a silver locket and Rs.500/- in the safe of his Almirah. His statement is corroborated by the evidence of A.K. Charies (PW11). Aforesaid witnesses deposed that Chandra Kumar had opened the lock of Almirah by the key and took out two gold rings, one gold chain, a silver locket and currency notes of Rs.50/- each. These articles were seized vide memo Ex.P-25. The evidence about the recovery of ornaments appears to be reliable. Recovery at the instance of appellant Chandra Kumar cannot be doubted merely on the ground that no witnesses of locality were taken by the Investigating Officer. The circumstances in which the aforesaid ornaments are said to have been recovered clearly indicate that the ornaments were found in his exclusive possession. From the evidence of Smt. Roopa Tiwari, wife of the deceased (PW9), it is established that on 24.10.1990 when deceased had gone from the house, he was wearing these ornaments on his body. Her statement is corroborated by the report EX.P-29A recorded in Rojnamcha. The recovered gold ornaments were put up for test identification on two occasions, one identification parade was conducted by Naib-Tahsilar V. Singh (PW10) wherein Madan Lal Soni (PW16) identified the ornaments. Identification memo is EX.P-7. Madan Lal Soni (PW16) again identified the articles before the Court and deposed that these ornaments were manufactured by him for Girish Tiwari. In another identification proceeding, which was conducted by Vijay Verma (PW5), aforesaid ornaments were identified by the wife of deceased Smt. Roopa Tiwari (PW9). Identification memo is EX.P-6. By the evidence of aforesaid witnesses it is established that the seized ornaments belonged to deceased and were recovered after his death from the possession of appellant Chandra Kumar. In this regard the trial Court has also appreciated the evidence of witnesses meticulously and reached the same conclusion. 18. Identification memo is EX.P-6. By the evidence of aforesaid witnesses it is established that the seized ornaments belonged to deceased and were recovered after his death from the possession of appellant Chandra Kumar. In this regard the trial Court has also appreciated the evidence of witnesses meticulously and reached the same conclusion. 18. Another piece of evidence tendered against appellant Chandra Kumar is about the recovery of his blood stained clothes and a register belonging to deceased in which some certificates of Girish Tiwari and his group photo was also kept. According to Salim Khan, Investigating Officer and Ashok Kumar Charies (PW11), when all the four accused persons were taken to house of Hansmukh Katre, his house was found locked. The lock was broken by the police and the clothes and register were found, in the house kept in polythene bags. These articles were seized at the instance of Chandra Kumar vide seizure memo EX.P-20 and Roopa Tiwari (PW9) identified the register to be that of her husband. 19. Learned counsel for the appellants submitted that the recovery of clothes and the register cannot give rise to any inference against appellant Chandra Kumar. According to him, aforesaid articles are said to have been seized from the house of Hansmukh Katre, but Hansmukh Katre has not been produced by the prosecution in evidence. The house was found locked and was admittedly in the possession of Hansmukh Katre. The door of the house was broken open by the police as there had been no key. He submitted that in such circumstances it cannot be said that the seized articles were in the possession or exclusive knowledge of the appellant. On due consideration of the arguments of the learned counsel we find substance in it. The circumstances brought on record clearly indicate that the place from where the register and the clothes were seized, was not in possession of the appellant. Admittedly, it was the house of another person viz., Hansmukh Katre and it was found locked, the key was not with the appellant. In our opinion, under no circumstances possession of the aforesaid seized articles could be presumed to be that of appellant, and the possibility that the appellant merely had the knowledge about the alleged register being kept by Hansmukh Katre, who happened to be the employee of his factory, cannot be ruled out. In our opinion, under no circumstances possession of the aforesaid seized articles could be presumed to be that of appellant, and the possibility that the appellant merely had the knowledge about the alleged register being kept by Hansmukh Katre, who happened to be the employee of his factory, cannot be ruled out. When discovery of a fact gives rise to more than one probable inferences, it cannot be accepted as an incriminating circumstance against the accused. Hence, the recovery of the register and the clothes from the house of Hansmukh Katre cannot be treated as an incriminating circumstance against appellant Chandra Kumar. 20. Thus, on critical appreciation of all the evidence adduced by the prosecution for proving the chain of circumstances appearing against appellant Chandra Kumar, we are unable to uphold the finding arrived at by the trial Court holding the appellant guilty of the commission of murder of Girish Kumar. Accordingly, the conviction of appellant Chandra Kumar for the offence under section 302 as well as 201 of IPC is set aside. However, the recovery of the ornaments of the deceased from his possession has been found proved. It is also proved that the aforesaid gold rings, gold chain and silver locket were in the possession of the deceased at the time of his death. In the circumstances it can be reasonably inferred that appellant Chandra Kumar dishonestly misappropriated or converted to his own use the aforesaid ornaments knowing them to be in possession of deceased at the time of his death as the aforesaid ornaments had not since been in the possession of any other person legally entitled to their possession. Accordingly, the conviction of appellant Chandra Kumar for the offence under section 404 of IPC and the sentence awarded for it by the trial Court is affirmed. 21. Now we come to the question of the involvement of the appellants Babboo @ Maqbool, Hamid and Malla @ Devendra in the offence. We have already found the evidence of Mahipal (PW8) who allegedly had seen them going into the plastic factory of Chandra Kumar unreliable. We have already discussed and found that there is no evidence that the appellants were last seen together with the deceased in the factory. Among other circumstances which prosecution proposes to rely against these appellants one is the recovery of motorcycle of deceased allegedly at the instance of appellant Hamid. We have already discussed and found that there is no evidence that the appellants were last seen together with the deceased in the factory. Among other circumstances which prosecution proposes to rely against these appellants one is the recovery of motorcycle of deceased allegedly at the instance of appellant Hamid. Investigating Officer Salim Khan (PW23) deposed that on interrogation, Hamid disclosed that he had concealed the motorcycle near the aforesaid Nala. According to this witness, said motorcycle was seized lying by the side of Nala vide seizure memo Ex.P23. In para 37 of his statement Ashok Kumar Charies (PW11) admitted that in Aanwlajhari from where the motorcycle was seized was an open place. On perusal of the evidence of Investigating Officer Salim Khan (PW23) also it is no where found that the motorcycle was covered or concealed in any manner. Similar is the evidence about the recovery of gunny bag, plastic bag and a black electric wire on the information of accused Malla @ Devendra. All these recoveries at the instance of accused persons are said to have been made from open places; lying in open condition. Thus, the circumstances in which the aforesaid articles are said to have been recovered do not give rise to the inference that the articles were in their exclusive possession or exclusive knowledge. 22. So far as the evidence of recovery of blood stained clothes on the information of appellants is concerned, only the shirts alleged to be of accused-appellant Babboo @ Maqbook and Malla @ Devendra were found to have blood stains, which as per the report of Werologist (Ex.P-47) contained human blood. As per the evidence of Salim Khan, Investigating Officer, aforesaid clothes were seized from the house of Hansmukh Katre. No independent evidence has been adduced to prove that these clothes belonged to aforesaid accused persons. Another important aspect which needs consideration is that the human blood found on the clothes were of 'O' group, but there is no evidence to show that the blood group of the deceased was also 'O'. In the aforesaid circumstances it is not established beyond reasonable doubt that the clothes were stained with blood of the deceased. Otherwise also in the absence of other cogent and reliable evidence mere recovery of blood stained clothes is insufficient to furnish evidence of murder of deceased at the hands of aforesaid appellants. 23. In the aforesaid circumstances it is not established beyond reasonable doubt that the clothes were stained with blood of the deceased. Otherwise also in the absence of other cogent and reliable evidence mere recovery of blood stained clothes is insufficient to furnish evidence of murder of deceased at the hands of aforesaid appellants. 23. In Padala Veera Reddy v. State of A.P. and others [ AIR 1990 SC 79 ], it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : "(1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should from a chian so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 24. In State of U.P. v. Ashok Kumar Srivastava [1992 CrLl 1104], it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one of favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt of the accused. 25. In the light of foregoing discussion and on due consideration of the facts and circumstances of the case we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the appellants committed the murder of deceased Girish Kumar. Therefore, the finding of conviction recorded against them with respect to offence under section 302 read with section 34 and section 201 of IPC is set aside and they are acquitted of the charge. However, appellant No.1, Chandra Kumar's conviction under section 404 of IPC and the sentence awarded by the trial Court is affirmed. 26. Therefore, the finding of conviction recorded against them with respect to offence under section 302 read with section 34 and section 201 of IPC is set aside and they are acquitted of the charge. However, appellant No.1, Chandra Kumar's conviction under section 404 of IPC and the sentence awarded by the trial Court is affirmed. 26. The appeal is partly allowed.