JUDGMENT 1. - This jail appeal has been filed by the accused-appellant Aslam @ Deewan against the judgement of the learned Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur by accused-appellant Aslam @ Deewan and co-accused Wasim @ Raju were convicted for offence under section 302/34 of IPC and sentenced to life imprisonment with fine of Rs. 5,000/- each. In default of payment whereof, they were to further undergo rigorous imprisonment of one year. They were also convicted for offence under section 397/34 of IPC and were sentenced to undergo rigorous imprisonment of seven years each with fine of Rs. 3,000/- each with the stipulation that in the event of their failure to make payment of fine, they will have to further undergo rigorous imprisonment of one year each. Both the sentences were ordered to run concurrently. 2. Factual matrix of the case is that on 23.1.2002, the railway driver Chandra Mohan,PW-25 informed Narayan Singh, the then Station Master, Railway Station, Jaipur, (PW-14) by written report Ex.P-31 while he was on duty in goods train no.MMG-1 and entering in Jaipur yard, he noticed a dead body lying on the driver side near gate no.24 close to the advance signal. The dead body was slightly away from the railway line. Narayan Singh, the Station Master informed the Police Station, Government Railway Police, Jaipur vide Ex.P-31, who undertook the proceedings under Section 174 of Cr.P.C. and got the dead body photographed. Panchnama was prepared and postmortem was conducted. It was there after that Rajendra Singh, PW-42, the then SHO, Police Station Manak Chowk submitted a report to Government Railway Police, Police Station, Jaipur on 14.5.2002, on the basis of interrogation note of the above referred to two accused when they were detained in connection with the investigation of FIR No.148/02 for offence under section 394 and 307/34 of IPC, which revealed that four months' before they had taken one person to their room on payment of Rs. 100/- for having unnatural sex with him and thereafter they brought him near railway station close to the railway lines and murdered him by causing injuries on his head with the use of iron rod. 100/- for having unnatural sex with him and thereafter they brought him near railway station close to the railway lines and murdered him by causing injuries on his head with the use of iron rod. A First Information Report No.136/02 was registered on that basis and during course of investigation, statement of one Om Prakash Rathore was recorded who stated that on 19.4.2002, he read a news item in newspaper Daspur Express and saw the photograph of the deceased in the newspaper and identified the dead body to be that of his son Vinod Kumar Rathore. The Investigating Officer on the basis of information Ex.P-84 procured from co-accused Wasim and from Ex.P-85 from accused Aslam under section 27 of the Evidence Act, recovered two blood stained iron rods and some belongings of the deceased vide recovery memo Ex.79 at the instance of accused Aslam and recovery memo Ex.73 at the instance of co-accused Wasim. Charges against both the accused were framed under Section 302/34 and 397/34 of IPC, which they denied and claimed to be tried. Prosecution examined as many as 42 witnesses in support of its case and exhibited 116 documents. No oral or documentary evidence was produced by the defence. However, the accused in their statement under section 313 of Cr.P.C. stated that they have been falsely implicated in this case. The learned trial court after hearing arguments of the Public Prosecutor and the counsel for accused appellants, convicted both the accused for the aforestated offences. Only one of them i.e. Aslam @ Deewan has preferred this appeal and that too through the Superintendent of Central Jail, Ajmer. 3. Since, no one was appearing on behalf of accused-appellant Aslam @ Deewan, we requested Shri Kapil Gupta, learned Advocate to act as amicus curiae and assist this Court, to which he acceded. 4. Shri Kapil Gupta, learned amicus curiae has argued that the accused-appellant and co-accused Wasim have been falsely implicated in this case. It is a classic case where there is absolutely no evidence against them, even then the police has manipulated entire case to make them scapegoats. It is argued that entire case has been founded on interrogation of accused Wasim Ex.P-115 and Aslam Ex.P-116, which documents are not admissible in evidence being hit by Section 8 and 25 of the Evidence Act. It is argued that entire case has been founded on interrogation of accused Wasim Ex.P-115 and Aslam Ex.P-116, which documents are not admissible in evidence being hit by Section 8 and 25 of the Evidence Act. It is argued that entire prosecution case was built up merely guided by the interrogation note. Even though, the learned trial court in its judgement has held those interrogation notes to be inadmissible in evidence, yet it has believed the subsequent recoveries etc. which all emanated from the story concocted by the police in the interrogation note. The learned trial court has taken undue influence therefrom otherwise all this story has, in fact, not been substantiated by the prosecution by any evidence whatsoever. The information said to have been given by the accused with respect of the place of occurrence vide Ex.P65 and Ex.P67 also could not be accepted as evidence because the place of occurrence was exactly the same where the dead body of the deceased was found, which fact was already known to the police from before. The said information has not led to discovery of any new fact as the place of incident was already known to the police from before. Similarly, it is alleged that the accused had taken deceased to their rented room and had unnatural sex with him and information was given by the accused under Section 27 of the Evidence Act about the room. Learned amicus curiae argued that no offence whatsoever was committed in the said room and no FIR against the accused was registered under section 377 of IPC, nor any charge sheet has been filed against them for that offence. That information also can be of no consequence as far as present case is concerned. 5. Shri Kapil Gupta, learned amicus curiae argued that the only evidence that has been made basis for sustaining the order of conviction of accused-appellant Aslam @ Deewan and Wasim @ Raju is Ex.P79 and Ex.P73, the recovery memos of one iron rod, each at the instance of accused and other articles of the deceased. Ex.P-85 is the memo of information said to have been given by the accused-appellant Aslam during investigation stating that he had concealed one blood stained iron rod, one used pant with some documents, one steel box of tobacco near Hasanpura in front of water tank close to the railway lines. Ex.P-85 is the memo of information said to have been given by the accused-appellant Aslam during investigation stating that he had concealed one blood stained iron rod, one used pant with some documents, one steel box of tobacco near Hasanpura in front of water tank close to the railway lines. On that basis, the recovery was made vide Ex.P79. Similar information is said to have been given by the accused Wasim vide Ex.P-84 pursuant to which recovery of blood stained iron rod, one shirt, few documents, one purse, one wrist watch and one silver chain were made vide recovery memo Ex.P-73. Learned amicus curiae argued that these recoveries have been grafted and these are highly unbelievable recoveries. What is suspicious is that recovery is shown to have been made at the instance of each of the accused and almost from the same place, yet two different recovery memos and two different seizure memos were prepared vide Ex.P79 and Ex.P73 respectively. Learned counsel argued that incident has taken place on 23.1.2002 and these recoveries were made on 6.6.2002 on the basis of information alleged to have been given by both the accused. The recoveries were made after four and half months of the incident. If the weapon i.e. iron rod used for committing murder of the deceased, which remained buried one and half feet under the ground, how would it not contain rust? In order to safeguard against such a doubt, the police has shown recoveries at the instance of both the accused in such a way that it is not required to explain why the iron rod did not get the rust. The innovative idea that was used by the police in the present case is that both the accused had put the iron rod and other articles recovered at their instance in a polythene bag and both of them buried them at the same place about one and half feet under the ground, therefore, when they were taken out, they did not get rust. Not only that, what has been stated by the police is that the iron rod contained the blood stains. On SFSL examination, that did not match with the blood said to have been found on the shirt and the ground. In this connection, learned counsel referred to Ex.P-113. Not only that, what has been stated by the police is that the iron rod contained the blood stains. On SFSL examination, that did not match with the blood said to have been found on the shirt and the ground. In this connection, learned counsel referred to Ex.P-113. Moreover, recovery of the iron rod at the instance of the accused-appellant and the co-accused Wasim was shown from an open place and it was not in exclusive possession of either the appellant or the co-accused and the fact that the recovery was made after four and half months by itself makes the recovery highly doubtful. This is a weak nature of evidence to sustain the conviction of the accused only on the basis of recovery. 6. Shri Kapil Gupta, learned amicus curiae has argued that, in fact, deceased was originally identified as one Sanjay Rathore. In this connection, he referred to the statement of PW-4, Mohan Lal Tak, owner of the Mewar Hotel where deceased was staying on the day of incident and statement of the Manager of the Hotel, Sita Ram, PW-8, who identified the dead body of the deceased as that of Sanjay Rathore. It was argued that even in interrogation of both the accused-appellant Aslam and co-accused Wasim, the entire case was built by the police describing the deceased as Sanjay Rathore and not as Vinod, which name was given to him at later point of time and then the police in its record mentioned name of the deceased as Sanjay Rathore @ Vinod, whereas no person by the name of Sanjay Rathore @ Vinod ever existed. Learned counsel argued that for initial period of four months, the entire investigation has proceeded on the basis of death of Sanjay Rathore, but it is only thereafter that the name of Vinod was introduced. Learned amicus curiae in this connection referred to the statement of father of Vinod i.e. PW-22 Om Prakash Rathore, who in his cross examination has stated that his son Vinod was never called as Sanjay. Neither, he nor his friends called him by the name of Sanjay. Learned counsel argued that PW-22, Om Prakash, father of the deceased has identified the photograph of the dead body to be that of his son Vinod and not that of Sanjay Rathore. Neither, he nor his friends called him by the name of Sanjay. Learned counsel argued that PW-22, Om Prakash, father of the deceased has identified the photograph of the dead body to be that of his son Vinod and not that of Sanjay Rathore. The police did not make any effort to go to Neemach to find out whether there was any other person by the name of Sanjay Rathore son of Omkar Lal Rathore, Dhawali Mohalla, Neemach, the address which he had disclosed in the hotel register Ex.P-9A. Learned counsel submitted that PW-20 Shanti Lal, uncle of the deceased has stated that he came to know about death of his nephew from the newspaper and then he came to Jaipur. The conduct of the police while investigating this case, has been highly deplorable as argued by learned amicus curiae because the dead body of the deceased was allowed to be cremated as that of an unidentified person and not handed over to the family members. Learned counsel argued that the family members of the deceased did not have the opportunity to see the dead body of Vinod and they did not even know whether this was Vinod or some one else or Sanjay Rathore because no investigation on that aspect has been made by the police. They handed over the dead body of the deceased to an employee of the Municipal Corporation, Jaipur wherein they stated that name of the deceased was not known. Reference in this connection is made to Ex.P-55, whereas the inquest report that was prepared on 23.1.2002 Ex.P-44 mentioned the name of the deceased to be Sanjay Kumar Rathore S/o Omkar Lal Rathore, Dhawali Mohalla, District Neemach. (M.P.) His identity was linked to Neemach in some way or the other. The police ought to have therefore made investigation to find out his relatives so that identity of the dead body could be established before he was cremated. When his name was already known with reference to his native place, how could police handover his dead body on the very next day to the Municipal Corporation by describing him to be unknown person and allow the dead body to be cremated. 7. When his name was already known with reference to his native place, how could police handover his dead body on the very next day to the Municipal Corporation by describing him to be unknown person and allow the dead body to be cremated. 7. Shri Kapil Gupta, learned amicus curiae argued that since the police was not able to solve this case and since the appellant and the co-accused Wasim were already arrested in connection with some other case, therefore, only to earn laurels, the police has made these two innocent persons scapegoat by illegally fastening liability of this murder on them. There was no motive of appellant and the co-accused Wasim to murder the deceased. What has been recorded on the basis of interrogation note is that they paid a sum of Rs. 100 to the deceased for having unnatural sex with them and for that purpose, brought him to their room where they consumed liquor, but due to certain differences, they brought him to the place of incident and put him to death by inflicting blows of iron rods. Such a story is very difficult to believe, more particularly when the alleged purpose was only to have pleasure and not anything else. 8. Shri Kapil Gupta, learned amicus curiae argued that Ex.P-38, the identification of the clothes of the deceased namely; woolen sweater, black jacket, shirt, pants and one pair of slippers from Shri Shanti Lal, PW-20, uncle of the deceased and from Om Prakash, PW-22, father of Vinod Kumar and those articles which have been recovered at the instance of the accused-appellant Aslam and co-accused Wasim has also not been property got done. The police did not take proper care to mix up sufficient number of similar articles with those articles. What has been stated is that similar articles have been mixed, but what were the similar articles and what type of articles is now known. Even then the pant and shirt of the deceased were not identified by PW-22 Om Prakash and PW-20 Shanti Lal. The subsequently recovered articles, which were shown to have been recovered at the instance of the accused-appellant Aslam and co-accused Wasim, were also not properly identified. Even then the pant and shirt of the deceased were not identified by PW-22 Om Prakash and PW-20 Shanti Lal. The subsequently recovered articles, which were shown to have been recovered at the instance of the accused-appellant Aslam and co-accused Wasim, were also not properly identified. Learned amicus curiae in this connection submitted that the seizure of the clothes and other belongings of the deceased was made on 5.6.2002 vide Ex.P-25 and their identification was also got done on that very day, whereas the arrest of the accused-appellant and the co-accused Wasim were already made from before on 5.3.2002. The subsequent articles that were shown recovered at the instance of the accused-appellant were also got identified vide Ex.P-4 and surprisingly no care was taken by police to mix the sufficient number of similar articles therewith and this time, the police mixed up those articles therewith, which were already got identified from PW-20 Shanti Lal and PW-22, Om Prakash. Even for the second time, the jacket, shirt, pant and sweater and the silver chain of the deceased that were earlier got identified from those two witnesses vide Ex.P38 and Ex.P39, were again mixed up with those articles, which were shown to have been recovered at the instance of the accused-appellant. When they were mixed up with such articles, which were known to witnesses from before i.e. the father and mother of Vinod, their identification is highly doubtful. Those witnesses would obviously have a bias in deposing against the accused because they would then act with a pre judged notion and surely identify such articles. All that has been stated in Ex.P-4 is that effort was made to mix up similar articles, but in fact, no such similar articles were mixed up. Neither their particulars nor specifications have been mentioned. In the facts of the case, therefore, identification of the articles said to have been recovered at the instance of the accused-appellant and co-accused Wasim becomes highly doubtful. 9. Shri Kapil Gupta, learned amicus curiae submitted that in fact the evidence on record suggests that originally when postmortem of deceased was conducted, reason of death that was given was by fall from the train. Learned counsel in this connection referred to Ex.P60, postmortem report of the deceased and also Panchayatnama Ex.P43 and Fard Surat Lash Ex.P44. 9. Shri Kapil Gupta, learned amicus curiae submitted that in fact the evidence on record suggests that originally when postmortem of deceased was conducted, reason of death that was given was by fall from the train. Learned counsel in this connection referred to Ex.P60, postmortem report of the deceased and also Panchayatnama Ex.P43 and Fard Surat Lash Ex.P44. In all of which, the cause of death has been indicated to be fall from the train, with which the Police Station GRP was satisfied. As to how, liability of such accidental death could be fastened upon the accused appellant and the co-accused Wasim is highly surprising. 10. Shri Kapil Gupta, learned amicus curiae argued that there is no evidence against accused-appellant and co-accused Wasim of any last seen or otherwise, connecting them with the crime. The recovery by itself cannot be the sole reason for sustaining their conviction. Learned counsel in support of his arguments cited the judgement of division bench of this Court in Bheesham Singh & Ors., 2011 (1) Cr. Law Reporter (Raj.) 755 and the judgement of Supreme Court in Narsinbhai Haribhai Prajapati etc. v. Chhatrasinh & Ors., 1977 Criminal Law Journal 1144 . It is argued that in a case of circumstantial evidence, chain of circumstances against the accused should be so complete, which rules every other hypothesis, which may be compatible with innocence of the accused and points the accusing finger only towards such accused. This is not the case of that kind where any such evidence has come on record. The learned trial court has failed to lawfully discharge its duties to scrutinise all these aspects and has mechanically proceed to convict the accused. It is therefore prayed that both the accused be honorably acquitted or at least acquitted by extending them benefit of doubt because the offence against them has not been proved beyond reasonable doubt. Such benefit should also be extended to the co-accused Wasim, who has not filed appeal, but his case is exactly similar to the accused-appellant. 11. Shri J.R. Bijarniya, learned Public Prosecutor opposed the appeal and argued that charge against the accused-appellant and the co-accused Wasim has been fully proved beyond reasonable doubt. Such benefit should also be extended to the co-accused Wasim, who has not filed appeal, but his case is exactly similar to the accused-appellant. 11. Shri J.R. Bijarniya, learned Public Prosecutor opposed the appeal and argued that charge against the accused-appellant and the co-accused Wasim has been fully proved beyond reasonable doubt. Learned counsel submitted that at the initial stage, the matter was wrongly closed considering it to be an accidental death by fall from train, but during interrogation of the accused when they were arrested in connection with the investigation of another case, they have disclosed the complete story as to how they murdered the deceased Vinod, who was also known as Sanjay Rathore. When he stayed at Mewar Hotel, Vinod disclosed his name to be Sanjay Rathore. His parents; namely PW-22 Om Prakash, his father and PW-3, Shiv Kanya, his mother have identified photograph of his dead body and his uncle Shanti Lal, PW-20 and brother Jai Prakash, PW-5 have also appeared as a witness and stated that Vinod Kumar was also known as Sanjay. PW-22 Om Prakash, PW-3 Shiv Kanya and PW-20 Shanti Lal have identified the belongings and other articles of the deceased, which were recovered at the instance of accused-appellant. All the witnesses have proved the recovery. The learned Public Prosecutor in this connection referred to the statement of witnesses of recovery PW-41, Om Prakash and PW-38 Surendra Sharma. He has also referred to the statement of the Investigating Officer, PW-42, Rajendra Singh. The Investigating Officer, PW-42 has proved the fact that information about the incident was given to him by the accused. It was argued that even though that information may not be admissible in evidence, but the consequential recovery that was made and the evidence that was collected thereafter would still be admissible in evidence. The recovery memos Ex.P79 and Ex.P73 were prepared on the basis of information given by the accused-appellant Aslam @ Deewan and co-accused Wasim @ Raju respectively. Eventually when the recovery was made on that basis, it has been proved by the witnesses of recovery PW-41 Om Prakash and PW-38 Surendra Sharma. The factum of recovery can thus validly be taken as the basis for sustaining the conviction because it is admissible in evidence. 12. Eventually when the recovery was made on that basis, it has been proved by the witnesses of recovery PW-41 Om Prakash and PW-38 Surendra Sharma. The factum of recovery can thus validly be taken as the basis for sustaining the conviction because it is admissible in evidence. 12. Shri J.R. Bijarniya, learned Public Prosecutor submitted that proper care was taken to mix up the recovered articles with similar articles and identification of the articles were got done from the father, mother and uncle of the deceased in the presence of the Judicial Magistrate. In this connection, learned counsel referred to the statement of PW-16 Atul Kumar, the Judicial Magistrate who has proved the identification vide Ex.P4 of all those articles, which were found on the dead body of the deceased and also those which were recovered at the instance of accused-appellant and the co-accused Wasim. It is argued that this Magistrate has stated that all efforts were made to mix up the similar articles except the electricity bill, which was containing the name. The other articles Ex.P-38 and Ex.P-39 in respect of articles recovered from the dead body of the deceased were proved by PW-17 Gyan Prakash Gupta, the Judicial Magistrate who has also made the similar statement. It cannot, therefore, be said that the police has cooked up a false case against the accused. 13. Learned Public Prosecutor argued that mere absence of motive cannot be a reason to throw the prosecution case. Motive may not be relevant in a case where other strong circumstances are available against the accused. 14. Learned Public Prosecutor submitted that the simple reason why the iron rods did not get rust, was that they were buried in a polythene bag by both the accused appellant and co-accused Wasim. However, on that basis alone, the recovery cannot be said to be doubtful. The initial reason given in the postmortem report Ex.P60, Panchayatnama Ex.P43 and fard surat lash Ex.P44 is that the death may have been caused due to fall from the train, cannot be taken as conclusive now when the offence has been proved against the accused-appellant on the strength of evidence. It is therefore prayed that the appeal be dismissed. 15. We have given our anxious consideration to the rival submissions and perused the material on record. 16. It is therefore prayed that the appeal be dismissed. 15. We have given our anxious consideration to the rival submissions and perused the material on record. 16. The law on the question of circumstantial evidence is well settled that an accused can be convicted in a case of circumstantial evidence only if the chain of circumstances against him is so complete as to rule out every single hypothesis that may be compatible with his innocence. Standard of proof in a criminal matters is always beyond reasonable doubt. Prosecution, in every such case is required to prove guilt of the accused beyond reasonable doubt. If there is any scope of reasonable doubt, benefit of such doubt has to be extended to the accused. We shall test the arguments raised by the learned amicus curiae and the learned Public Prosecutor on that yardstick to find out whether alleged offences against the accused appellant and co-accused Wasim have been proved beyond reasonable doubt. 17. It has been rightly argued that there is no evidence of last seen against the accused. When the dead body of the deceased was first recovered and the panchayatnama Ex.43 was prepared, the apparent reason that was mentioned for his death was fall from the train, due to which he received injuries. This was also mentioned in the fard Surat lash Ex.P44 and the postmortem report Ex.60. The accused were already arrested in connection with the investigation of FIR for offence under section 302/34 and 397/34 of IPC and during custody in that case, they were subjected to interrogation by the police. The police discovered on interrogation that both the accused, who were arrested together in that FIR, were also responsible for the death of Sanjay Rathore @ Vinod. On the basis of that information, which the police extracted from their interrogation, a first information report was registered. The interrogation note of accused-appellant Aslam @ Deewan has been exhibited as Ex.P116 and similar interrogation note of the co-accused Wasim has been produced in evidence as Ex.P-115. On the basis of that information, which the police extracted from their interrogation, a first information report was registered. The interrogation note of accused-appellant Aslam @ Deewan has been exhibited as Ex.P116 and similar interrogation note of the co-accused Wasim has been produced in evidence as Ex.P-115. Both of these documents have been held to be inadmissible in evidence even by the learned trial court, but nevertheless the reading of the judgement indicates that the trial court has throughout belaboured under the influence of those documents and proceeded to mechanically convict the accused-appellant not only for the alleged offence under section 302/34 but also for offence under section 397/34 of IPC. 18. We are therefore inclined to uphold the argument of the learned amicus curiae that the learned trial court has failed to discharge its duty in not properly scrutinising the record. Initially when the dead body was recovered, Sitaram PW-8, who was Manager of the Mewar hotel identified deceased to be Sanjay Rathore, who was a guest in their hotel. The servant of the hotel i.e. Santosh Singh was also examined as PW-21, who also identified the deceased to be Sanjay Rathore, who stayed in their hotel. The entry of accused in the hotel was made in the register Ex.P9 by the name of Sanjay Rathore son of Omkar Lal Rathore, Dhawali Mohalla Neemach (MP). Evidently, the police did not make any effort to approach the police at Neemach in Madhya Pradesh or otherwise verify the particulars given in the hotel register so as to fix the identity of the deceased. The conduct of the police in this case has been highly deplorable when they handedover the dead body of deceased to an employee of the Municipal Board, Jaipur vide receipt Ex.P55 for being cremated. Surprisingly, in this document, that was described as receipt for delivery of dead body, identity of the deceased has been mentioned as unknown person by caste Hindu aged about 20 years and reference of the proceedings under Section 174 drawn in the GRP Police Station has been given. When we compare this with the document i.e. Ex.P-44, panchayatnama prepared only a day before on 23.1.2002, it becomes evident that name of this person was mentioned as Sanjay Rathore son of Omkar Lal Rathore, Dhawali Mohalla, District Neemach (MP). When we compare this with the document i.e. Ex.P-44, panchayatnama prepared only a day before on 23.1.2002, it becomes evident that name of this person was mentioned as Sanjay Rathore son of Omkar Lal Rathore, Dhawali Mohalla, District Neemach (MP). Although brother of the deceased PW-5 Jai Prakash has stated that his brother Vinod Kumar was also called as Sanjay, but after this very line, he has throughout called him Vinod in his five pages statement. PW-3, Shiv Kanya, who is mother of Vinod has also mentioned deceased Vinod as his son. PW-22 Om Prakash, father of the deceased has categorically stated in cross examination that his son was known as Vinod only and that neither he nor his friends used to call him Sanjay. PW-20, Shanti Lal, younger brother of Om Prakash, who was uncle of deceased Vinod, has also throughout mentioned name of the deceased to be Vinod. The fact is that when in hotel register, the deceased mentioned his name to be Sanjay Rathore, giving his address of Neemach, why did the police not try to locate his identity and why did it not make investigation in that direction. Although, eventually, all the aforesaid witnesses have claimed that they identified the deceased to be Vinod from the photograph of his dead body and some of the recovered articles, but that is not sufficient to connect the accused-appellant Aslam @ Deewan and co-accused Wasim with the crime. This fact had to be independently proved, regardless of whether the deceased was Vinod, son of PW-22 Om Prakash or Sanjay Rathore or that he carried both the names, which the prosecution in the present case has utterly failed to prove. 19. Coming now to the question whether the recovery that has been made in the present case can be accepted as the valid basis for sustaining the order of conviction, we find that the accused were arrested in connection with investigation of another case in Case No.148/02 of Police Station Manak Chowk registered for offence under section 394, 307/34 of IPC. Coming now to the question whether the recovery that has been made in the present case can be accepted as the valid basis for sustaining the order of conviction, we find that the accused were arrested in connection with investigation of another case in Case No.148/02 of Police Station Manak Chowk registered for offence under section 394, 307/34 of IPC. Their interrogation note was made by the police on 14/15th May, 2002 and acting on that basis, a first information report was registered against the accused and further on that basis, the information is said to have been given by the accused or obtained by the police from both of them, vide Ex.P84 from co-accused Wasim and Ex.P85 from accused appellant respectively, on 6.6.2002. The co-accused Wasim by Ex.P84 is shown to have given information under section 27 of the Evidence Act that he has concealed one blood stained iron rod, one used shirt, one purse, few papers, one silver chain and one wrist watch at certain place between Hasanpura railway crossing and Ajmer road railway bridge in front of water tank in one and half feet pit underneath the land. Another information vide memo Ex.P85 is said to have been given by accused-appellant Aslam about concealing one blood stained iron rod, one pant, few papers, a tobacco container of steel at the same place and in a pit also of same depth. The effort of the police yielded positive results and those recoveries were successfully made despite lapse of more than four and half months. Firstly; these recoveries have been made four and half months after the date of incident; secondly they have been made from an open place and thirdly, pursuant to the information that was procured on the strength of an interrogation note made from the accused when they were in custody in another case. This is not to say that articles recovered while the accused may be in custody in another case would not be admissible in evidence but nevertheless the Court has to keep in view circumstances in which the recovery is made for ultimately deciding the guilt of the accused and connecting him with crime. And we in this case find the recoveries to be highly doubtful. 20. Now coming on the question of identification, we find serious infirmities in the manner in which identification has been made. And we in this case find the recoveries to be highly doubtful. 20. Now coming on the question of identification, we find serious infirmities in the manner in which identification has been made. Curiously, despite the fact that identification was supervised by the Judicial Magistrate, no care was taken to ensure that sufficient number of identical articles were mixed up so that no prejudice was caused to the accused. Even if we accept that three similar articles each were mixed up at the time when the articles recovered from the dead body were got identified from the witnesses but in that too, the PW-20 Shanti Lal and PW-22 Om Prakash and PW-3 Shiv Kanya respectively have not identified the shirt and pant of the deceased. They identified the sweater, black jacket and one pair of slippers, but when we go to the identification of the articles vide Ex.P4 and Ex.P10, which are said to have been recovered at the instance of the accused-appellant respectively by PW-22 Om Prakash, father, PW-3 Shiv Kanya, mother and PW-5 Jai Prakash, brother of the deceased, we find serious infirmities therein because this time again the very same articles that were subject matter of identification in the earlier proceedings conducted vide Ex.38 and Ex.39 on 5.6.2002 were mixed up with newly recovered articles in this identification that was conducted vide Ex.P4 and Ex.P10 on 8.7.2002 and 16.7.2002. Though a note has been given in the identification sheet that as far as possible some, similar articles have been mixed up except the electricity bill because it contained the name of the consumer, but it is difficult to appreciate as to why the very same articles that were earlier subjected to identification by the parties were again mixed up with those new articles, which were shown to have been recovered at the instance of the accused-appellant and the co-accused Wasim. This could have certainly introduced an element of bias in the mind of the relatives of the deceased namely; father Om Prakash, mother Shiv Kanya and brother Jai Prakash, who would always wish to see that someone whom they perceive to be responsible for the death of their son/brother should get punished. This could have certainly introduced an element of bias in the mind of the relatives of the deceased namely; father Om Prakash, mother Shiv Kanya and brother Jai Prakash, who would always wish to see that someone whom they perceive to be responsible for the death of their son/brother should get punished. But when, they are made to identify the new articles with those articles, which they have already identified, the element of proof is writ large by way of suggestion that these newly recovered articles should also be belonging to deceased. On this aspect of the matter, cross examination was made of PW-3 Shiv Kanya, mother of Vinod who has stated that there was no specific mark in the clothes and that they had come to Jaipur only after seeing the photograph in the newspaper. She stated that her husband told him before that the clothes were that of the deceased Vinod. Although, she denied the suggestion that police had shown her the clothes in advance. PW-5 Jai Prakash, brother of Vinod Kumar has stated about identification of dead body of his brother only from the photograph because by the time he and his uncle came to Jaipur, the dead body had been cremated. He had no special information about the clothes, nor he was aware wherefrom the silver chain was purchased. 21. There is then another aspect which needs to be noticed which PW-3 Shiv Kanya, the mother of the deceased has stated that her son Vinod had a fall from the steps and got head injury. He was treated by Dr. Ashok and the head injury was stitched. She has stated that after receiving that injury, he had unstable mind. PW-5 Jai Prakash, brother of deceased Vinod has also stated that Vinod had a fall at Neemach, due to which he sustained injury on his head, but he did not become mad, however, he received treatment for about a month. 22. Father of the deceased Om Prakash PW-22 has stated about identification of silver chain with the deceased that Vinod himself purchased the neckless/silver chain, but he was not aware when did he buy the chain and from where. Regarding watch, he has stated that Vinod used to wear a similar watch. Regarding purse, his statement is that Vinod never showed to him his purse, but he knew that he used to keep the purse with him. Regarding watch, he has stated that Vinod used to wear a similar watch. Regarding purse, his statement is that Vinod never showed to him his purse, but he knew that he used to keep the purse with him. The uncle of the deceased Shanti Lal, PW-20 has in cross examination stated that deceased Vinod used to be called not only by the name of Vinod but his another name was Ramu. He stated that he cannot say that whose name was Sanjay. He has stated that the sweater that was identified by him was knitted by his wife, which he identified from its design. He has also stated that after fall from the steps at Neemach, deceased was treated in SMS hospital in 2000 and 2001, where he was subjected to surgery thereafter and though he regained the health, but he did not have mental stability. 23. Analysis of evidence that we have made above clearly shows that in this case there are several missing links and the chain of circumstances against the accused appellant Aslam and co-accused Wasim is not so complete as to rule out every other hypothesis which may be compatible with the innocence of the accused. Recovery, which has been made in the present case is highly doubtful and weak nature of evidence. It cannot be concluded that the circumstances of this case points towards guilt of the accused-appellant Aslam @ Deewan and co-accused Wasim only and none else. It would be therefore highly unsafe to convict them on the basis of such evidence, although, by now they have suffered much because they are in jail for last ten years. Unfortunately, it is now after a decade that we have reached to this conclusion that they have not been proved guilty by the required standards of law and that the offences against them, have not been proved beyond reasonable doubt. They are thus held entitled to benefit of doubt for all the aforesaid reasons. 24. Surprisingly, it seems rather naive to believe that while committing the offence, both the accused would carry with them polythene begs and both of them would distribute the articles in such a way that they would be equally put in polythene bag and then buried in a pit at the same place, at the same time and at the same depth. The statement of Investigating Officer, PW-42, Rajendra Singh hardly inspires any confidence as to the manner in which the recoveries have been made to connect the accused with the crime. This according to the learned amicus curiae has been done because how could the Investigating Officer making recovery after four and half months after the date of incident found the iron rods fresh and without having any rust on them and to explain this factor, the polythene bags have been introduced not just for one iron rod but for both the iron rods with the articles of the deceased being divided equally amongst the two accused. 25. Manner and method of recovery does not inspire confidence. The information obtained from the accused as to the place of occurrence cannot be said to have been a circumstances against them because that information did not lead to discovery of any new fact. The fact as to where the dead body was found and where did the incident took place was already known to the police before. The Supreme Court in Narsinbhai Haribhai Prajapati, supra on the question of sustainability of conviction of recovery alone held that recovery of blood stained clothes and dharias with the accused were wholly insufficient for sustaining charge of murder. 26. The Supreme Court in Ashish Batham v. State of M.P., (2002) 7 SCC 317 held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere heinous or gruesome nature of the crime is not enough to punish the accused. It was held that mere suspicion, however strong it may be, cannot take the place of legal proof. It was held in that case that prosecution proceeding with a preconceived idea against accused, withholding and suppressing vital facts, documents, materials and witnesses. Though case based on circumstantial evidence, but circumstances not proved beyond doubt and vital links in the circumstances are found to be missing. The conviction of the accused was based on conjectures and surmises. The chain which was having an iron wire in place of hook, placed for identification test, no other chain having similar iron wire was placed along with that. The identification of the articles was thus held to be illegal and was not accepted as the valid basis for conviction. The conviction of the accused was based on conjectures and surmises. The chain which was having an iron wire in place of hook, placed for identification test, no other chain having similar iron wire was placed along with that. The identification of the articles was thus held to be illegal and was not accepted as the valid basis for conviction. Coming now to the conviction of the accused-appellant Aslam @ Deewan and co-accused Wasim @ Raju under section 397 read with 34 of IPC, we find that this conviction has been recorded on the basis of recovery of silver chain, which was recovered on the basis of the information given by the accused in the interrogation report Ex.P84 and Ex.85, which recovery has been in view of the above discussion found to be highly doubtful. Thus the conviction of the accused under section 397 read with Section 34 of IPC also deserves to be set aside. 27. We are conscious of the fact that co-accused Wasim has not filed appeal before this Court, but at the same time, we take note of the fact that in the present case, accused-appellant Aslam @ Deewan has preferred this appeal through Superintendent of Central Jail, Jaipur. In view of the catena of judgements of Supreme Court, we are persuaded to uphold the argument of learned amicus curiae to set aside the conviction and sentence awarded to the co-accused Wasim @ Raju as well. We may in this connection refer to the judgement of the Supreme Court in Mangoo v. State of M.P., (2008) 8 SCC 283 . The Supreme Court in that case has held that even when the co-accused has not filed appeal against the conviction, the benefit of altering conviction should be extended to the non-appealing accused as well. In fact, in one of the cases, i.e. Pawan Kumar v. State of Haryana, (2003) 11 SCC 241 , it was held that non extending such benefit to the non-appealing accused in the facts and circumstances of the case, would be violative of Article 21 of the Constitution of India. 28. While we conclude this judgement, we would like to express our sense of appreciation for the efforts put in and the assistance provided to us by Shri Kapil Gupta, the learned counsel who on our request appeared as amicus curiae in this case. 29. 28. While we conclude this judgement, we would like to express our sense of appreciation for the efforts put in and the assistance provided to us by Shri Kapil Gupta, the learned counsel who on our request appeared as amicus curiae in this case. 29. In view of above, we are unable to persuade ourselves to uphold the judgement passed by the learned trial court. We therefore set aside the conviction of the accused appellant Aslam @ Deewan and co-accused Wasim @ Raju for offence under section 302/34 and 397/34 of IPC and sentence recorded in the impugned judgement and acquit them of the charge for those offences. 30. The appeal is accordingly allowed. Both the accused namely; accused-appellant Aslam @ Deewan and co-accused Wasim @ Raju, if they are not required to be detained in any other case, may be released forthwith.Appeal allowed. *******