JUDGMENT 1. - Challenge in this appeal is to the judgment dated April 1, 2004 of the learned Special Judge (Fake Currency Cases) Jaipur City, Jaipur whereby the appellant was convicted and sentenced as under: U/s. 304/34 IPC : To suffer imprisonment for life and fine of Rs. 1,000/-, in default to further suffer rigorous imprisonment for six months. U/s. 397 IPC : To suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. Substantive sentences were ordered to run concurrently. 2. After Govind Ram (Pw.11) was posted as Accountant in Telecommunication Department at Kota, he started residing at Kota alone leaving his wife Savitri at his house situated in Vaishali Nagar Jaipur. On September 6, 2001 around 3.40 PM Govind Ram received telephonic call of his brother Gulab Chand (Pw.20) about the murder of Savitri. Govind Ram immediately left Kota for Jaipur and after reaching Jaipur he handed over a written report (Ex.P-17) at 11 PM to the SHO PS Vaishali Nagar to the effect that some unknown person killed his wife and removed two golden bangles, ten artificial bangles, two golden tops, one Nepali coin and two silver rings Prior to that case under section 302 IPC was registered by PS Vaishali Nagar on the written report of Gulab Chand (Pw.20), who gave a written report (Ex.P-34) at 4 PM about the murder of Savitri. In the course of investigation dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and after completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Special Judge (Fake Currency Cases) Jaipur City, Jaipur. Charges under Sections 302 and 397 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 23. witnesses. In the explanation under Section 313 Cr.RC., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. Death of Savitri was concededly homicidal in nature. The prosecution in support of its case examined as many as 23. witnesses. In the explanation under Section 313 Cr.RC., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. Death of Savitri was concededly homicidal in nature. As per Post Mortem Report (Ex.P-29) following ante mortem injuries were found on the dead body : (A) Ligature Mark : Two ligature marks found encircling all around the neck at the level of over the thyroid cartilage prominence. One ligature is 31 cm long and 0.3 cm in width and another is 28.0 cm and 0.3 in size at the level of centre of thyroid cartilage both ligatures are overlapping each other & produced a mark of size 3/4 cm in width and 2.0 cm are of overlapping thereafter both ligature marks are separated from each other with a gap of 2.0 cm in between on either sides. The ligature marks are well grooved brownish, red in colour, hard to feel. Both ligatures are running upwards and backwards a faint gap of 3.0 cm to 2.5 cm on each ligature marks is appreciated on back of neck towards left side. The marks of the ligature are abraded in parallel on , their either (upper and lower) margins. On dissection the skin layers under the ligature marks are found contused with extravasation of blood in the layers of skin brownish red in color. All the ribbon muscles of the neck showing similar indentation marks as on outer aspect with extravasation of blood. (B) Injuries detected on the body at the time of post mortem : 1. Two abrasions of size 6.0 x 0.5 cm and 6.0 x 0.3 cm each with a gap of 1.0 cm in between with brownish red dislocation on left forearm at the junction of anterior 1/3 and middle 1/3 part antero laterally and horizontally in position. In the opinion of Dr. Shiv Ratan Kochar (Pw.16) the cause of death was strangulation. 4. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. In the opinion of Dr. Shiv Ratan Kochar (Pw.16) the cause of death was strangulation. 4. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. Learned counsel for the appellant vociferously canvassed before us that the circumstances relied on by the prosecution have not been satisfactorily established and that in any event the circumstances said to establish against the appellant do not provide a complete chain to bring home the gilt of the appellant. Learned counsel took us through the material on record, a look at which goes to show that team of members of Forensic Science Laboratory Rajasthan Jaipur headed by Dr. Prabha Sharma Assistant Director (Pw.7) visited the scene of crime at 4.50 PM on September 6, 2001 and remained there upto 8 PM. Report (Ex.P-15) give by Dr. Prabha Sharma reads as under: "Observation : 1. The scene of occurrence was disturbed. The body was lying on the bed (Fig.3). Mouth was partially opened, teeth were visible partially, lips were bluish, eyes closed face was slightly swollen (fig.4). 2. A narrow deep ligature mark was visible around the neck. Hands were clenched (Fig.3) and had flour sticking to the palms indicating she was cooking. Abrasion was seen on wrist near the bangles (Fig.7). A small kitchen knife, a small white coloured cloth and two pillows were lying on the bed. The bed was neatly made devoid of any traces of struggle. The room also did not have sign of struggle. The ligature mark was narrow completely encircled the neck transversely being less deep at the back. In front and on both the sides of the neck it was comparatively deeper, abrading the surface at several places (Fig.4, 5 & 6). A narrow zone of reddening and congestion was seen above the groove. The observations of ligature mark led to believe that the victim had been strangulated by some narrow wire like object instead of something by pillow as hypothesised by the Police investigation. Hence a frantic search for wire like object (narrow plastic rope or wire) was made in the entire house, roof and surrounding of the house. 3. The position of the kitchen was indicative of the fact that she was making chapatis when she opened the gallery door to allow some known persons to enter the house. Since gallery door had traces of flour. 3. The position of the kitchen was indicative of the fact that she was making chapatis when she opened the gallery door to allow some known persons to enter the house. Since gallery door had traces of flour. The front border of the oven had a dent 1.9 cms wide. The width of white angular marble stone (chakla) was also found to be of 1.9 cm approx., one chapati burnt on one surface was lying at back of the gas oven (Fig.9) 4. Dining hall floor was having few stains of blood (Fig.8) which was taken in a cotton swab and handed over to the 10. All the rooms of the house were searched thoroughly. One of the two rooms at the back was found to have one Iron box, brief case disturbed from their places. The other room of the back was vacant. Door of this vacant room led to outside into the court yard at the back. The back door was lying opened 5. A clutch wire was found in a cemented pit in the vacant plot at the back of the house (Fig. 12). The wire had some spider web adhering to it, hence police investigation considered it to be very old, having no relevance with the incident. But the wire was observed thoroughly. A hair was found entangled in the grooves of the wire. The wire was folded to form a loop which could encircle a neck (Fig.11). It was tested for the presence of blood which was found to be positive. The hair entangled in the wire was separated from it wrapped in a piece of paper and handed over to the IO along with the wire for sending it to the laboratory for further examination. Instructions given to IO : The IO was instructed regarding lifting, packing and forwarding the articles viz. blood soaked cotton with control cotton clutch wire, hair separated from wire, pillow covers, bed sheet along with bunch of hair found on bed sheet, a piece of mattress cover to FSL for further examination. The IO was advised to get the post mortem conducted with emphasis on ligature mark surface observation under higher magnification, so that it would be matched with the grooves of clutch wire. 1 The scene of crime was also covered photographically and set of photographs was prepared to illustrate the scene of crime." 5. The IO was advised to get the post mortem conducted with emphasis on ligature mark surface observation under higher magnification, so that it would be matched with the grooves of clutch wire. 1 The scene of crime was also covered photographically and set of photographs was prepared to illustrate the scene of crime." 5. It is discerned from the testimony of Govind Ram (Pw.11) that on the day of incident while he was working as Accountant in Telecommunication Kota at 2.30 PM his children made a call to him but he could not talk as he 1 was busy in meeting. Around 3.45 pm his brother informed him that his wife was murdered. He left Kota and reached at Jaipur at 9.30 PM, His wife was already removed to hospital. He was informed by his children and neighbours that his wife Savitri was murdered by someone after 12 O' clock in the noon. Gulab Chand (Pw.20) in his deposition stated that on the date of incident while he was on duty at SMS hospital his wife informed him that his Bhabhi was lying unconscious. When he reached at the house, police had already reached there. His Bhabhi was already dead. Bhagwan Singh (Pw.22), who conducted investigation of the case, deposed in his cross-examination that he did not find any finger print or foot pints in the house or at the door. He further admitted that the room from where ornaments were recovered was not locked and at the time of recovery nobody was found in the house. 6. It also appears that one pair of tops (ear rings), a nose pin made of gold and two silver anklets were found on the dead body of Savitri. These ornaments were handed over to Govind Ram after the post mortem on 2 September 9, 2001. Govind Ram in turn gave receipt (Ex.P-45). 7. The appellant after his arrest on September 8, 2001 allegedly gave information under section 27 Evidence Act in regard to recovery of two bangles and tops made of gold, one Nepali coin and ten artificial bangles. The information was recorded in the memo (Ex.P-47). Pursuant to the information the ornaments were got recovered vide recovery memo (Ex.P-32). 8. 7. The appellant after his arrest on September 8, 2001 allegedly gave information under section 27 Evidence Act in regard to recovery of two bangles and tops made of gold, one Nepali coin and ten artificial bangles. The information was recorded in the memo (Ex.P-47). Pursuant to the information the ornaments were got recovered vide recovery memo (Ex.P-32). 8. Learned trial court in the impugned judgment observed as under: " lHkh ifjfLFkfrtU; lk{; dh dfM+;k dzec) tksM+us ij vfHk;qDr dk d`R; gh iw.kZr% bl ?kVuk ds lEcU/k esa izekf.kr djrk gSA e`rdk dk ?kj ij vdsyh gksuk] ywV ;k pksjh dk bjknk igys ls gh eu esa gksus ls ml le; dk pquko vfHk;qDr }kjk djuk] ekSds ij fuiVus dh rS;kjh ds fy, igys ls gh Dypok;j vfHk;qDr dks ysdj tkuk] e`rdk ds ?kj ds ikl oS'kkyh uxj esa gh vfHk;qDr dk fuokl djuk] e`rdk ds ?kj ij vkuk&tkuk] ?kVuk ds fnu gh ugha vfirq laHkor% ?kVukdkfjr djus ds le; gh vfHk;qDr }kjk fy, x;sA LdwVj vkj0,u0oh0 6237 gjs fi'rk jax dk nqdku ij crk;s dke dks vatke nsus ds fy, ysdj tkuk vkSj blh nkSjku le; fudkydj vius mn~ns'; dh iwfrZ gsrq e`rdk ds ?kj igqapuk] blh LdwVj ls ?kVuk ds iwoZ ih0Mh0 4 eksg0 'kgtkn ds ;gkWa ih0M0 2 }kjk Hksts tkus ij igqapuk vkSj ?kVuk ds ckn Hkh blh LdwVj ls mlh ih0M0 4 ls fiLVu&flys.Mj cksj djok;s gq, dks izkIr djus ds fy, igqapkuk] rRi'pkr~ djhc 2&2-15 cts vius dk;Z{ks= fot; lfoZl lsUVj ckjg HkkbZ;ksa dk pkSjkgk ij igqapuk vkSj viuh nsjh dk dkj.k iwNus ij ysVjhu tkus ds fy, oS'kkyh uxj tkuk vkSj Vksdus ij dksbZ Li"Vhdj.k ugha nsuk] rRi'pkr~ vius dke esa yxus ls igys Dypok;j dks gkFk ls [khapus dk viuh gFksyh dh pksVksa dk Li"Vhdj.k rS;kj djus ds fy, midze djuk vkSj fQj nwljs fnu LdwVj dks ysdj vius }kjk dgha ugha tkus dh ckr ih0M0 2 dks iqfyl dks u dgus dh crkuk vdkV~; :i lsegRoiw.kZ gS] tks esjs fouez er esa vfHk;qDr dk ,d vfrfjDr U;kf;d laLohd`fr dFku Hkh gS vkSj blh ls vfHk;qDr dk vkijkf/kd vkpj.k ?kVukdze ds lanHkZ esa Li"V >ydrk gSA " 9. A close look at the afore quoted observations goes to show that learned trial court base its findings on surmises and conjectures. A close look at the afore quoted observations goes to show that learned trial court base its findings on surmises and conjectures. Learned trial court has failed to notice following peculiar facts of the case : (i) Earrings and nose pin made of gold and two silver anklets were found intact on the dead body of Savitri. (ii) As per FSL report (Ex.P-52) human semen was found on the piece of mattress cover on which Savitri was found lying dead. However semen was not detected in vaginal swab and vaginal smear. Even semen was not found on the pants of the appellant. (iii) As per post mortem report (Ex.P-29) pubic hair were found shaved. (iv) Govind Ram (Pw.11) husband of Savitri, in his cross- examination deposed thus: " ;g lgh gS fd eSa esjh e`rdk iRuh dks vius lkFk ugha j[krk FkkA " (v) Dr. Prabha Sharma (Pw.7) deposed that when she reached at the scene of crime she saw dutch wire lying in a corner : " tc ge ogkWa igaqps rks Dyp ok;j ?kj ds vkaxu ds ,d dksus esa j[kk FkkA ;g Dypok;j esjs igqapus ls igys j[kk FkkA " (vi) Bhagwan Singh 10 (Pw.22) in his cross-examination admitted that : " ftl LFkku ;g cjkenxh dks x;s og dejk dqank can Fkk] rkyk ugha Fkk------dejk fdjk;s'kqnk ugha Fkk] eqyfte ds fj'rsnkj dk Fkk-----fj'rsnkj xqykcpUn Fkk-------ftlesa lkeku Fkk og vkyekjh Locked ugha FkhA csx ij Hkh Lock ugha Fkk----ml LFkku ls tgkWa csx feyk Fkk nwljs dejs esa tkus dk dksbZ vojks/k ugha FkkA edku ekfyd jgrk Fkk------lgh gS fd eqyfte edku ekfyd ds lkFk jgrk Fkk D;ksafd edku ekfyd dh lkyh dk yM+dk gS------A " 10. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests : (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 11. 11. Applying these lucid tests to the facts of the case on hand we find that evidence adduced at the trial is not qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. It could not be established that motive behind murder was theft of ornaments. Had the culprit such intention, he would have removed ornaments from the dead body. The recovery of ornaments got effected from the almirah which was not locked. Even this fact could not be established that the room from where recovery was got effected, was in exclusive possession of the appellant. The prosecution also failed to explain as to why human semen was found on the mattress of deceased, when her husband was not residing with her. The origin and genesis of the occurrence appear to have been withheld by the prosecution. 12. The Investigating Officer of the case, it appears, was not well versed with the techniques of his job. He did not make efforts to collect the threads of evidence finding out the path which leads to the culprit. Instead of nabbing actual culprit, the Investigating Officer appears to have solved a sensational case by involving the appellant. Their Lordships of the Supreme Court in Subhash Chand v. State of Rajasthan, 2002(1) WLC (SC) Cri. 216 : 2002(1) SCC 702 , indicated about clueless crimes thus : (Para 26) "The ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. The accusation has to be proved to the hilt in a court of law. The evidence of the investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to; detection of the offender and collection of evidence against him." 13. In the ultimate analysis we find that in the instant case the doctrine of confirmation by subsequent fact could not be made applicable properly and the prosecution has failed to bridge the gap between 'may be true' and 'must be true' by clear, cogent and unimpeachable evidence and guilt against the: appellants is not proved beyond reasonable doubt. There are many missing links in the chain of circumstantial evidence and this aspect was not properly considered by the learned trial court. 14. For these reasons, we allow the appeal and set aside the impugned judgment dated April 1, 2004. There are many missing links in the chain of circumstantial evidence and this aspect was not properly considered by the learned trial court. 14. For these reasons, we allow the appeal and set aside the impugned judgment dated April 1, 2004. We acquit the appellant of the charges under: sections 302 and 397 IPC. The appellant Mukesh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.Appeal Allowed. *******