JUDGMENT 1. - These three appeals question legality of the judgment dated 10.1.2008 rendered by learned Additional Sessions Judge (Fast Track) No. 2, jodhpur in Sessions Case No. 3/2006. The conviction recorded and sentence awarded to the accused appellants under the judgment impugned is as follows: Accused Heminta under Section 302/120-B I.P.C. - Life imprisonment with a fine of Rs. 1000/- and in default of payment of fine further to undergo three months imprisonment. Under Section 143 I.P.C. - three months simple imprisonment. Under Section 201 I.P.C. - three years rigorous imprisonment with a fine of Rs. 500/- and in default of payment of fine further to undergo one month's imprisonment. Accused Narpat under Section 302/120-B I.P.C. - Life imprisonment with a fine of Rs. 1000/- and in default of payment of fine further to undergo three months imprisonment. Under Section 143 I.P.C. - three months simple imprisonment. Under Section 201 I.P.C. - three years rigorous imprisonment with a fine of Rs. 500/- and in default of payment of fine further to undergo one month's imprisonment. Accused Bhanwar Singh under Section 302/120-B I.P.C. - Life imprisonment with a fine of Rs. 1000/- and in default of payment of fine further to undergo three months imprisonment. Under Section 143 I.P.C. - three months simple imprisonment. Under Section 201 I.P.C. - three years rigorous imprisonment with a fine of Rs. 500/- and in default of payment of fine further Jo undergo one month's imprisonment. 2. The facts, deserve notice to get these appeals adjudicated, are that on 23.1.2006 at 12.40 PM a report about missing of Shri Suresh Sharma, Advocate, was lodged at Police Station Mahamandir at the instance of Shri Navneet Sharma (PW-15). As per the report missing person, father of the complainant, was having certain disputes with M/s. Vijay Punia and Gokalram pertaining to the lands situated within the revenue limits of village Nandri. On 21.1.2006, a telephonic call made by some property dealer was attended by mother of the complainant. Shri Suresh Sharma in response conveyed through phone about his proposed visit to the site on next coming day. On 22.1.2006 at 6.00 PM the missing person left the home to visit the agriculture fields situated at village Banad, but he neither returned nor left any information. While sitting at the shop of Ratanlal situated at Rasala Road, Shri Dhanna Ram saw Shri Suresh Sharma going towards Banad. On 22.1.2006 at 6.00 PM the missing person left the home to visit the agriculture fields situated at village Banad, but he neither returned nor left any information. While sitting at the shop of Ratanlal situated at Rasala Road, Shri Dhanna Ram saw Shri Suresh Sharma going towards Banad. The complainant apprehended some ill-happening including abduction with his father. 3. When the process of lodging first information report was in continuity, a message about recovery of a dead body on road in between villages Jajiwal Gehlotan and Jajiwal Bhatiyan was received at Police Station Mahamandir at about 12.50 PM. The complainant, thus, rushed to the spot aforesaid and found dead body of his father lying there. Certain police personnel's of Police Station Dangiawas were already present at that spot. The hands of the body were tightened behind and an effort to erase identity was apparent by hamerring face. The neck was inflammated with red marks and shoe of one foot was missing. 4. On recovery of the body aforesaid another first information report was registered at Police Station Dangiawas at the instance of Navneet Sharma (PW- 15) and investigation was carried out for the offences punishable under Sections 302 and 201 Indian Penal Code. 5. An autopsy on the body recovered was made by a board having three members viz. Dr. V.K. Maihotra (PW-23), Dr. Yogiraj and Dr. Rajesh Vyas. The Medical Board submitted its report Ex.P-35, according to which the person examined was having following antemortem injuries: (1) Ligature mark - 39 cm x 0.5 cm on middle of neck encircling the neck completely and horizontally with another ligature mark 41 cm x 0.5 cm also encircling the neck completely and horizontally above the front mark. The minimum distance between the two ligature marks is 4 cm on front of neck on right side and minimum distance is 0.3 cm on back of neck on left side. The ligature marks are brownish, hard, lathery and parchment like with margin are red and congested. The grooves are more prominent on ant lateral aspect of neck on both sides. (2) Abrasion - 4.5 cm x 4 cm on left side of forehead with diffuse swelling. (3) Abrasion - 1 cm x 1 cm near injury No. 2. (4) Lacerated wound - 2 cm x 0.3 crii x skin deep on upper part of right ear part near mastoid process. (2) Abrasion - 4.5 cm x 4 cm on left side of forehead with diffuse swelling. (3) Abrasion - 1 cm x 1 cm near injury No. 2. (4) Lacerated wound - 2 cm x 0.3 crii x skin deep on upper part of right ear part near mastoid process. (5) Abrasion - 2 cm x 0.1 cm on right mastoid region. (6) Lacerated wound - 1.5 cm x 0.2 cm x skin deep on right ear L/2 part. (7) Multiple abrasion on both sides of face varying in size from 0.3 cm x 0.2 cm to 4 cm x 0.2 cm. (8) Abrasion - 2.5 cm x 1 cm on lower lip on right side. (9) Abroded bruise - 8 cm x 4 cm on chin and right mandibular region. (10) Bruise - 3 cm x 1 cm on lower part of front of neck. (11) Abrasion - 6 cm x 0.5 cm on right costal margin. (12) Abrasion - 9 cm x 0.5 on right side of chest M/3 lat. (13) Multiple abrasions on lower part of chest and upper part of abdomen on left side varying in size from 1.5 cm x 0.2 cm to 4.5 cm x 0.2 cm. (14) Multiple abrasions on epigastic region varying in size from 0.2 cm x 0.1 cm to 1.5cm x 0.2cm. (15) Abrasion - 6.5 cm x 0.1 cm on lower part of left side of abdomen. (16) Bruise - 9.5 cm x 4 cm on left shoulder lat. (17) Bruise - 2.5 cm x 1.5 cm on lower part of right deltoid region. (18) Abrasion - 4.5 cm x 0.1 cm on L/3 of left side of chest ant (postmortem). (19) Abrasion - 7 cm x 0.1 cm near injury No. 18 (postmortem). (20) Abrasion - 0.3 cm x 0.2 cm near injury No. 19 (postmortem). 6. The cause of death given was "strangulation". The Board also kept the visras preserved for chemical examination. 7. The prosecution during the course of investigation arrested the accused appellants and after completion of investigation submitted a report as per provisions of Section 173 Cr.P.C. charging the appellants for the offences punishable under Sections 302, 201 and 120-B Indian Penal Code. The case then was committed to the Court of Sessions for trial. 8. 7. The prosecution during the course of investigation arrested the accused appellants and after completion of investigation submitted a report as per provisions of Section 173 Cr.P.C. charging the appellants for the offences punishable under Sections 302, 201 and 120-B Indian Penal Code. The case then was committed to the Court of Sessions for trial. 8. The trial Court framed charges against the accused appellants on 8.6.2006 in following terms: " izFke& fd vkids fo:) vkjksi gS fd vkius Jh lqjs'k 'kekZ dh gR;k djus ds mns'; ls ;w0ih0 ls HkkM+s ds gR;kjs cqykdj lqjs'k 'kekZ dh gR;k dk "kM;a= jpk rFkk vfHk;qDr lqjs'k 'kekZ dh gR;k dj nhA vkidk mDr d`R; Hkkjrh; n.M lafgrk dh /kkjk 120ch lifBr /kkjk 302 ds v/khu n.Muh; vijk/k gS] tks fd esjs izlaKku esa gSA f}rh;& vkids fo:) vkjksi gS fd vkius lqjs'k 'kekZ dh gR;k djus ds mns'; ls lkFk lkFk cSBdj ;k VsyhQksu okrkZ ds tfj;s 5 ;k 5 ls vf/kd O;fDr;ksa us voS/k o fof/k fo:) lHkk dk xBu fd;k rFkk vius vius d`R; lkekU; mns'; dh iwfrZ ds fy;s ckaVs vkidk mDr d`R; Hkkjrh; n.M lafgrk dh /kkjk 143 ds v/khu n.Muh; vijk/k gS] tks fd esjs izlaKku esa gSA r`rh; & vkids fo:) vkjksi gS fd vkius fnukad 22-1-2006 o 23-1-2006 ds e/; fdlh Hkh le; lqjs'k 'kekZ dh] gseyrk o ujir lhjoh ds edku IyksV uacj 111 fr:ifr uxj] cukM jksM] tks/kiqj esa] gR;k dj nh ;g vki lHkh ds "kM;a= fof/k fo:) teko ds lnL; rFkk HkkM+s ls yk, x, O;fDr;ksa }kjk gR;k djus rFkk vkidh ekSu Lohd`fr gksus ls vkidk mDr d`R; Hkkjrh; n.M lafgrk dh /kkjk 302 lifBr /kkjk 149 ;k 150 ds v/khu n.Muh; vijk/k gS] tks fd esjs izalKku esa gSA pkSFkk & vkids fo:) vkjksi gS fd vkius mDr vkjksi la[;k r`rh; esa of.kZr fnukad] LFkku o le; ij lqjs'k 'kekZ dh gR;k ds i'pkr~ vijk/k ds n.M ls cpus ds fy;s ujir lhjoh vfHk;qDr dh osu ls e`rd lqjs'k 'kekZ dh yk'k dks Hkksikyx<+ tkus okyh lM+d ds fdukjs ljgn tkthokyk xsgyksrku ij Mky nh vkidk mDr d`R; Hkkjrh; n.M lafgrk dh /kkjk 201 ds v/khu n.Muh; vijk/k gS] tks fd esjs izlaKku esa gSA " 9. The accused persons denied the charges and desired for trial. The prosecution supported its case with the aid of 37 witnesses (PW-1 to PW-37), documents Ex.P-1 to Ex.P-102 and articles Ex.A/1 to Ex.A/29. The accused persons denied the charges and desired for trial. The prosecution supported its case with the aid of 37 witnesses (PW-1 to PW-37), documents Ex.P-1 to Ex.P-102 and articles Ex.A/1 to Ex.A/29. An opportunity was given to the accused appellants to explain the circumstances appearing in the evidence against them. While availing the same, the accused persons pleaded innocence with assertion of their false implication in the case. Accused Hemlata stated that she was having no enmity with deceased Shri Suresh Sharma. 10. The trial Court on basis of the material available on record formulated five questions for its consideration and those are: (1) whether the accused persons before or during intervening night of 22nd and 23rd January, 2006 at the residence of accused Hemlata i.e. 111, Tirupati Nagar, Jodhpur or somewhere else formed a criminal conspiracy and in execution of that with an intention to kill Suresh Sharma hired killers from Uttar Pradesh and then killed or got him killed? (2) whether the accused persons on the day, time and place aforesaid, to satisfy a common object with the aid of other unknown persons planned to kill Suresh Sharma and for this purpose had telephonic conversations, formed unlawful assembly and discharged criminal acts? (3) whether on the day, time and place aforesaid or close thereto Suresh Sharma was murdered as a consequent to criminal conspiracy aforesaid and the accused persons had their silent consent and participation in the criminal act? (4) whether on the day, time and place aforesaid or close thereto, the accused persons threw the dead body of Suresh Sharma from the Maruti Van of accused Narpat on the road towards Bhopalgarh at the boundary of village Jajiwal Gehlotan, just to escape themselves from involvement and sentence for murdering Suresh Sharma and as such they caused disappearance of evidence? (5) whether any crime is proved against the accused persons? If yes, then what shall be the suitable sentence? 11. After examination of the entire evidence the trial Court answered all the questions aforesaid affirmative, thus, held the accused persons guilty of the charges levelled, hence recorded conviction and sentenced accordingly. 12. Before proceeding further, it is relevant to mention that an accused Javed was arrested subsequently, thus, his case is yet under trial and the investigation for accused Dhanesh, Badal and Satish is kept pending, as they have not been arrested and are absconding. 12. Before proceeding further, it is relevant to mention that an accused Javed was arrested subsequently, thus, his case is yet under trial and the investigation for accused Dhanesh, Badal and Satish is kept pending, as they have not been arrested and are absconding. A priority in hearing to this appeal is given in view of the order of Apex Court dated 20.9.2009 in petition for Special Leave to Appeal (Cri.) 16044/2009. 13. The prosecution availed conviction impugned by founding its case on several circumstances with different motives for accused Hen-data and Narpat vis-a-vis Bhanwar Singh. As per the prosecution deceased was frequently visiting the house of Hemlata and because of that she and her husband Narpat were quite perturbed, thus, they were intending to get rid of him. Accused Bhanwar Sigh was having some land dispute with one Smt. Sayri (PW-12), wherein he was threatened by deceased for dire consequences, thus, he was desirous to settle the score. With these motives the accused persons knitted a criminal conspiracy to kill deceased Suresh Sharma. To execute the conspiracy they hired professionals from Uttar Pradesh through Dhanesh said to be a brother of Hemlata. According to the prosecution the hired professionals visited Jodhpur twice and at that time lodged themselves at two different hotels. On the fateful evening the deceased was called at the residence of Hen-data where he was killed. His body then was taken in a Maruti Van owned by Narpat and was thrown on road side after making efforts to deface that. The linkage of circumstances to establish the appellants' connectivity with the crime is having different folds, thus, it shall be appropriate to deal with the case of each accused independently and then to assemble that to have definite conclusion.Accused Smt. Hemlata 14. The linkage of circumstances to establish the appellants' connectivity with the crime is having different folds, thus, it shall be appropriate to deal with the case of each accused independently and then to assemble that to have definite conclusion.Accused Smt. Hemlata 14. The trial Court after discussing the evidence available held this accused guilty for the charges alleged with following conclusions: (i) the accused with the aid of her brother Dhanesh called deceased Suresh Sharma at her residence with a pretext to visit a land site for some interested party; (ii) all the accused committed murder of Shri Suresh Sharma by strangulation after beating him; (iii) no evidence is available on record to disclose that the deceased went to any other place or was seen alive after parking his scooter in front of accused Hemlata's house; and (iv) the stole (chunni) recovered from the house of this accused was stained with human blood and no explanation is given to satisfy availability of that. 15. The conclusions aforesaid are arrived on basis of the circumstances as under: (i) a strong motive; (ii) effort to call deceased at the residence of Hemlala, (iii) the evidence akin to last seen; (iv) recovery of a blood stained stole (chunni); and (v) recovery of a slip having name and address of a person belonging to Uttar Pradesh. Motive 16. So far as the finding pertaining to motive is concerned, the trial Court drew inference about exploitation and victimisation of Hemlata by deceased Suresh Sharma on basis of the document Ex.P-70. The document is pertaining to an information given by Hemlata about the site, where the crime is said to be committed. The document Ex.P-70 was not at all open to draw any inference to gather the motive as that cannot be used except for the purpose of the disclosure made thereunder. As such, the motive for crime, if exists, then that is to be gathered by examining the other evidence available. 17. PW-15 Navneet (son of deceased) in quite specific terms stated that his father and Smt. Hemlata were keeping good relations and no dispute or tension between them was existing. This witness was having no knowledge about any kind of exploitation or victimisation of Hemlata by his father. 17. PW-15 Navneet (son of deceased) in quite specific terms stated that his father and Smt. Hemlata were keeping good relations and no dispute or tension between them was existing. This witness was having no knowledge about any kind of exploitation or victimisation of Hemlata by his father. PW-24 Smt. Meena wife of the deceased though disclosed acquaintance of deceased with Smt. He.-nlata, but nothing is said by her sufficient to draw any inference about any unwanted or undesirable connectivity between accused Hemlata and the deceased. Smt. Meena stated that Hemlata and her husband Narpat were visiting deceased Shri Suresh Sharma in the capacity of his client and they were not keeping any other relation except that. The evidence available on record is only to the extent that accused Narpat and Hemlata were known to the deceased from last number of years and occasionally they were visiting each others place also. As a matter of fact even on minute scanning of entire record, we failed to gather any evidence to arrive at a conclusion that accused Hemlata suffered any exploitation or victimisation from deceased Suresh Sharma and because of that she was desiring to get rid of him. On the contrary, the evidence available is sufficient to form an opinion about formal and cordial relations among them. Pertinent to note that PW-24 Meena wife of the deceased had a telephonic talk with Hemlata to have an inquiry of her husband, when he did not return to home in the night of fateful day. PW-24 nowhere stated that she had any doubt about commission of any crime by Hemlata at that stage. The motive gathered by the trial Court for commission of crime by accused Hemlata and Narpat, as such is not having cradle to stand.Circumstance pertaining to the effort made to call deceased at the house of Hemlata : 18. An important circumstance against this accused as well as against other accused persons accepted by the trial Court is the effort made to call deceased at the house of Hemlata and to establish that the version of prosecution is that Shri Dhanesh said to be a brother of Hemlata made a telephonic call at the land line basic telephone of deceased to call him at the residence of Hemlata. The call aforesaid was attended by Smt. Meenaxi (PW-27). 19. The call aforesaid was attended by Smt. Meenaxi (PW-27). 19. Smt. Meenaxi (PW-27) is sister-in-law (wife of the brother) of Smt. Meena (PW-24) and was at Jodhpur on 22.1.2006. As per this witness at about 5.00 PM on 22.1.2006 she attended a telephonic call. The call was by some male and on asking he introduced himself as "Dhanesh", brother of Smt. Hemlata. The caller left a message for deceased about visit to a piece of land, in purchase of that some party was interested. This message was conveyed by Smt. Meenaxi to Smt. Meena, who in turn conveyed it to deceased when he returned to home with one Shri Mohan Joshi. The deceased after having a cup of tea left home to visit Hemlata's house, where some party interested in land deal was said to be waiting. The deceased did not return to home thereafter. 20. Smt. Meena (PW-24) stated that on 22.1.2006 her sister-in-law Meenaxi attended a call said to be made by Dhanesh, brother\of Hemlata. The caller gave some message and Smt. Meenaxi passed over that to this witness. She then conveyed it to her husband, the deceased. According to Smt. Meena her husband was out of house since noon. He returned in evening with Shri Mohan Joshi and then again left the house on scooter by saying that Hen-data and Dhanesh are making calls from last two days as some party want to see a plot. 21. The testimony of these two lady witnesses cannot be disbelieved to the extent of receiving a call and the message given therein, but the identity of the caller cannot be settled by accepting this evidence. The caller would have introduced himself as Dhanesh and on that basis Smt. Meenaxi and Smt. Meena termed him as Dhanesh, but admittedly the caller was stranger for them and they were not having any acquaintance with the voice heard, as such the possibility of impersonation cannot be denied out rightly. The doubt suggested about impersonation acquires little force on appreciation of human tendency for not disclosing the identity in the process of executing a criminal conspiracy. If the caller was Dhanesh and he made call at the residence of deceased in execution of conspiracy, then in normal course he would have not disclosed his identity and would have also not conveyed the message to Smt. Meenaxi, who was absolutely unknown to him. If the caller was Dhanesh and he made call at the residence of deceased in execution of conspiracy, then in normal course he would have not disclosed his identity and would have also not conveyed the message to Smt. Meenaxi, who was absolutely unknown to him. The better course available was to call later on and to convey the message to the deceased himself. This mode appears to be more plausible and close to human nature. A lurking doubt, thus, exists in accepting that it was Dhanesh only who made the call that was attended by Meenaxi. The position would have been otherwise, if Meenaxi had been any previous acquaintance with the voice of the caller or the voice of the caller would have some unique feature having huge resemblance with the voice of Dhanesh. The evidence said to be akin to last seen : 22. The next circumstance on which heavy reliance is placed is pertaining to the movement of deceased towards and at the residence of accused Hemlata after leaving his home in the evening of 22.1.2006. As per Smt. Meena (PW-24) and Meenaxi (PW-27) the deceased left the house after having the message said to be given by Dhanesh. 23. As per PW-11 Dhannaram on 22.1.2006 in the evening at about 6-6.30 PM while sitting at Jajra Book Depot, Rasala Road, he saw Shri Suresh Sharma going towards "Nandri" and this fact was pointed out by him to Shri Ratanlal, owner of the book shop: As per this witness deceased was keeping good relations with Hen-data and whenever he was going towards "Nandri" he used to visit Hemlata's house, but on that specific day he went there or not, was not in his knowledge. 24. The definite conclusion of the evidence discussed above is that the deceased left his house in the evening of 22.1.2006 and he was intending to visit Smt. Hemlata's house. He was seen going towards "Nandri", the locality where Hemlata was residing. 25. The factum of reaching of deceased at the residence of Hemlata and Narpat solely rests upon the testimony of two witnesses viz. Hukam Singh (PW- 8) and Dharmendra Singh (PW-20). Suffice to mention that Hukam Singh (PW-8) is also a motbir of the panchnama (Ex.P-9) that was drawn on 23.1.2006 on a recovery of the dead body. 26. 25. The factum of reaching of deceased at the residence of Hemlata and Narpat solely rests upon the testimony of two witnesses viz. Hukam Singh (PW- 8) and Dharmendra Singh (PW-20). Suffice to mention that Hukam Singh (PW-8) is also a motbir of the panchnama (Ex.P-9) that was drawn on 23.1.2006 on a recovery of the dead body. 26. Shri Dharmendra Singh (PW-20), an electrician, deposed before the Court that on 22.1.2006 at about 6.30-7 PM he and his assistant Hukam Singh saw deceased Shri Suresh Sharma parking his scooter in front of Hemlata's house. On asking, deceased informed that he came there to show a plot to a party and then proceeded towards the gate of the house of Hemlata. Shri Hukam Singh (PW-8) also stated that he saw the deceased on 22.1.2006 at about 6.30-7 PM parking his scooter in front of a house and on asking by Dharmendra Singh (PW-20) he conveyed about his visit to Hen-data's house to show some plot to a party. 27. The statements of these two witnesses are quite important as they are the last persons who saw the deceased alive. The version given by them is certainly not a piece of evidence of last seen of deceased with accused persons, but pertaining to the presence of deceased in front of the house of accused Hen-data and Narpat before his disappearance and death. The version given by these witnesses, if is true and worth believing then that certainly indicates reaching of deceased at the residence of Hen-data and Narpat, thus, a minute scanning of the testimony given and other related material to these witnesses is of high importance. 28. As already stated earlier, Shri Hukam Singh (PW-8) is a motbir in presence of whom panchnama (Ex.P-9) was drawn by the police party on 23.1.2006 after recovering dead body of Shri Suresh Sharma. This witness was knowing deceased Shri Suresh Sharma and his family as his grand mother and deceased were residing in the same vicinity. This witness accepted that Shri Suresh Sharma died on the very next day after his meeting with him in front of the house of Hemlata. This witness also accepted that he put his signatures on the panchnama (Ex.P-9) on 23.1.2006. This witness accepted that Shri Suresh Sharma died on the very next day after his meeting with him in front of the house of Hemlata. This witness also accepted that he put his signatures on the panchnama (Ex.P-9) on 23.1.2006. The fact deserves notice is that though this witness was having knowledge about death of Shri Suresh Sharma on 2' :P.1.2006 and he put his signatures on the panchnama on that day itself, he did not choose to utter a single word about his meeting with the deceased only few hours back to the police party or to the family of deceased or even to Dharmendra Singh (PW-20). This fact was disclosed to the Investigating Agency by him on 28.2.2006, i.e. after huge lapse of one month and six days from the date of occurrence. No satisfactory explanation is forwarded by this witness for not disclosing a very important fact for a very long term. This fact acquires more importance as this witness was among the persons who saw the dead body of Late Shri Suresh Sharma immediately after its recovery. The fact pertaining to meeting with deceased only few hours earlier to his death is material and in normal course a person of common prudence supposed to disclose it as an immediate response on seeing the dead body. The non-disclosure of the fact concerned, thus, is not in consonance to the normal human behaviour and such a conduct of PW-8 is little bit difficult to digest. 29. PW-20 Shri Dharmendra Singh stated that he came to know about murder of Shri Suresh Sharma after a gap of about 20-25 days and no information in this regard was given to him by Hukam Singh (PW-8). As per this witness he visited residence of deceased to pay condolence to his family after a lapse of about 20-25 days from the date of occurrence. On that day he disclosed to Navneet (PW-15) first time about his meeting with deceased in the evening of 22.1.2006. This witness also stated that PW-15 Navneet told him to convey this fact to the Investigating Agency, however, due to paucity of time that was not done on the very same day, but on 28.2.2006. It is quite important to note that neither this witness nor Navneet (PW-15) cared to convey this important fact to the investigating agency even after having knowledge for further about 10-15 days. It is quite important to note that neither this witness nor Navneet (PW-15) cared to convey this important fact to the investigating agency even after having knowledge for further about 10-15 days. PW-15 Navneet accepted that the disclosure made by Dharmendra Singh (PW-20) was not communicated by him to the Investigating Agency. 30. It is further pertinent to note that Dharmendra Singh appeared in the scene at the first instance on 28.2.2006, the day on which Hukam Singh too was subjected to the inquiry by the Investigating Agency. The Public Prosecutor asked an important question to Dharmendra Singh (PW-20) in re-examination in the terms that whether he had any conversation about murder of Shri Suresh Sharma with Hukam Singh within a period of one and quarter past one month from the date of murder & ~ if not then why? In response, this witness denied any conversations with Hukam Singh about the incident, however, he did not choose to reply as to why no such conversation took place. Deceased Shri Suresh Sharma was known to Dharmendra Singh as well as Hukam Singh. Both these witnesses met him just before a day of his murder and Hukam Singh was one among the persons who saw the dead body on 23.1.2006 itself. In spite of it he did not utter even a word about gruesome incident to Dharmendra Singh with whom he was regularly working. This kind of conduct is not acceptable to a normal human nature and to a common wisdom. In totality, the testimony of these two witnesses is under heavy clouds and that cannot be accepted to establish a definite circumstance while joining a link to base conviction of a person for a serious charge of committing murder.Recovery of stole (chunni) 31. The next circumstance relied upon by the trial Court is recovery of a stole (chunni) having blood stains of human origin. This recovery was made on 27.1.2006 in presence of witnesses Rameshwar (PW-16), Ramniwas (PW-9) and Rabulal (PW-10). The memo of recovery is Ex.P-21. Suffice to note that accused Hemlata was arrested on 27.1.2006 at 03:25 PM and an information was provided by her at 3.35 PM about the place of occurrence. While inspecting the site, the stole was recovered. The team of Forensic Science Laboratory noticed certain blood stains on that. The memo of recovery is Ex.P-21. Suffice to note that accused Hemlata was arrested on 27.1.2006 at 03:25 PM and an information was provided by her at 3.35 PM about the place of occurrence. While inspecting the site, the stole was recovered. The team of Forensic Science Laboratory noticed certain blood stains on that. The stains noticed were found to be of human origin as per the Forensic Science Laboratory report Ex.P-58. Before recovery of the stole, the entire scene of occurrence was thoroughly inspected by the team of Regional Forensic Science Laboratory and that submitted its report (Ex.P-50) on 31.1.2006. As per this report, "the scene of occurrence was a two room set with kitchen, toilet and bath room. The scene was already disturbed. All the suspected stains were chemically tested for presence of blood. But blood was not detected anywhere in the house. Blood stains were detected on a chunni which was shown to us by Investigating Officer". The contents of the report (Ex.P-50) establishes it well that the team of the Forensic Science Laboratory thoroughly examined the scene of occurrence but did not find the "chunni" and that was shown to it by Investigating Officer. 32. At this stage, it shall be relevant to mention that as per Shri Ram Singh (PW-37), the Investigating Officer upto 24.2.2006, he took over Hemlata and Narpat from their house for interrogation in the morning of 27.1.2006 and at that time neither any clue nor evidence was available about their involvement in the crime under investigation. They were interrogated merely on basis of rumors, but during the interrogation some important disclosure came on surface and on basis of that arrests were made and the site of the occurrence was inspected. The report of site inspection available on record as Ex.P-23, and as per that accused lien-data naviaue the police party to her house and after touching the door she stated that it was her house. The door was also opened by her by giving a push from hand. The report nowhere mentions about any lock on the house. PW-37 Shri Ram Singh also stated that while taking the accused persons for interrogation in the morning of 27.1.2006 neither he locked the house nor he kept any key of that with him. He has also not stated anything about locking of the house. The report nowhere mentions about any lock on the house. PW-37 Shri Ram Singh also stated that while taking the accused persons for interrogation in the morning of 27.1.2006 neither he locked the house nor he kept any key of that with him. He has also not stated anything about locking of the house. From the factual position narrated above, it appears that the house remained unlocked from morning time when the accused persons were taken by the police team for interrogation and remained unlocked at least till the inspection took place as per Ex.P-23. As such, it can be safely said that the stole was recovered from a place that remained open for several hours. 33. An important aspect of the matter is that the incident under adjudication occurred on 22.1.2006 and the inspection was made in the evening of 27.1.2006 i.e. after a lapse of more than four days. The accommodation aforesaid was under occupation of Smt. Hen-data and her husband Narpat in this entire period. It appears little strange that the accused persons despite having absolute occupation of the house did not make any effort to remove and disappear the evidence pertaining to the crime said to be committed by them. A blood stained stole is not a small piece of an article that may not attract attention of the accused persons who are otherwise vigilant in disappearing the other evidence. This kind of behaviour is not in consonance to normal human nature. 34. It is also pertinent to note that the recovery of stole was made on 27.1.2006 and the witnesses for that are PW-16 Rameshwar, PW-9 Ramnwas and PW-10 Babulal. PW-9 Ramniwas and PW-16 Rameshwar are not the residents of the vicinity wherefrom the recovery was made, but of a distant place. PW-10 Babulal is a police constable. It is evident from the statements of PW-9 Shri Ramniwas that he was quite intimate with deceased and his family, thus, he was involved in all the steps taken after lodging of missing report of deceased Shri Suresh Sharma. On recovery of the dead body this witness attested the reports of several steps taken during the course of investigation. The site inspection report Ex.P-13, the panchnama Ex.P-9, Ex.P-14, Ex.P-17, Ex.P-18, Ex.P-19, Ex.P-20 and Ex.P-1 were attested by this witness. On recovery of the dead body this witness attested the reports of several steps taken during the course of investigation. The site inspection report Ex.P-13, the panchnama Ex.P-9, Ex.P-14, Ex.P-17, Ex.P-18, Ex.P-19, Ex.P-20 and Ex.P-1 were attested by this witness. As per this witness on 27.1.2006 while returning from Banad Road he saw a police team outside the house of Hemlata. On asking, Investigating Officer Shri Ram Singh told him that the team was there to make a search. A request was made to him to join the team as motbir and he accepted that. There is nothing unusual in the facts narrated by this witness, however, we failed to understand that why the police party did not try to call some independent person from the same vicinity to join it as motbir. This fact acquire more importance as the other two witnesses of the recovery were also not independent persons. PW-16 Rameshwar is admittedly a relative of the victim family and PW-10 Babulal is a police constable. PW-16 Rameshwar is witness of certain other recoveries too. As per PW-16 on 27.1.2006, when he was passing through the village Nandri, Tirupati Nagar, he saw certain police officials standing outside the house of Hen-data alongwith Shri Ramniwas (PW-9) and Surajmal. This witness while verifying the recovery made under the document Ex.P-23 stated that the spot wherefrom recovery was made is not on his regular route to his office from the house, however, on that day he took a different way. This witness accepted that he is son of a cousin brother of deceased and he was also a witness pertaining to the recovery made on 29.1.2006 from the house of Hemlata's mother. PW-9 Shri Ramniwas and PW-16 Rameshwar are kith and kips of the victim family. It would have been better for the investigating agency to have independent witnesses for verifying the recoveries made during the investigation. The investigating agency should always make an effort to get the recoveries verified with the aid of independent witnesses and if any impediment is there, then that should be recorded and disclosed by the Investigating Officer in its record. Such a course strengthens the confidence with investigating agency, for whom the fundamental object is to have a fair and objective investigation. Such a course strengthens the confidence with investigating agency, for whom the fundamental object is to have a fair and objective investigation. In the instant matter the Investigating Officer (PW-37) Shri Ram Singh has not said anything, despite asking as to why he availed aid of close friend and relative of deceased family for the purpose aforesaid, though they are residents of distant place. He has also not said as to why no effort was made to have independent witnesses to establish recovery. Beside the above, the finding given by the Forensic Science Laboratory about the blood stains available on the recovered stole is only to the extent that those are having origin from human blood. The doubt, thus, exists to the extent that the stains aforesaid may be of accused persons or anybody else who may be connected or may not be connected with the crime. The cumulative effect of the entire discussions made above is that the recovery made on 27.1.2006 from the open house of accused Hemlata and Narpat is not having confidence necessary to settle conviction for a serious offence like murder.Accused Narpat Choudhary 35. In addition to the circumstances discussed above, the prosecution pleaded certain more adverse circumstances to procure conviction of this accused and those are: (1) the recovery of visitors entry register from Hotel Taj and Hotel Raneja on basis of the disclosure made by this accused; (2) the call details relating to conversations among the accused persons just before and after commission of the crime; (3) the recovery of vehicle i.e. Maruti Van in which dead body of the deceased was alleged to be transported; and (4) the availability of blood stains on the seat cover and mate of the vehicle recovered at the instance of this accused. 36. With the aid of the circumstances noticed above the prosecution tried to establish that accused Narpat and Bhanwar Singh had telephonic talks and they entered into a conspiracy to eliminate Shri Suresh Sharma. In execution of the conspiracy accused Narpat made necessary arrangements to lodge hired killers at Hotel Taj and Hotel Raneja at Jodhpur. To establish conspiracy the call details pertaining to the alleged conversations among the accused persons were relied upon. An another circumstance is the recovery of a Maruti Van on basis of the disclosure made by this accused. 37. In execution of the conspiracy accused Narpat made necessary arrangements to lodge hired killers at Hotel Taj and Hotel Raneja at Jodhpur. To establish conspiracy the call details pertaining to the alleged conversations among the accused persons were relied upon. An another circumstance is the recovery of a Maruti Van on basis of the disclosure made by this accused. 37. According to the prosecution accused Narpat as per Ex.P-76 disclosed that his brother-in-law Dhanesh with his son Badal and two other persons viz. Satish Kumar and Javed stayed at Hotel Taj and Hotel Raneja at Jodhpur. Acting upon the information visitors entry register were seized from Hotel Taj and Hotel Raneja. The seizure memo prepared while making seizure of register from Hotel Taj is available on record as Ex.P-78 and relevant pages of the entry register are also marked as Ex.P-79. The seizure of the register is sought to be established with the aid of the evidence adduced by PW-21 Abdul Tahir and PW- 22 Farooque. These two witnesses stated about recovery of the visitors register and the recovery memos prepared in pursuant thereto. As per Ex.P-79 one Shri Dhanesh resident of Bharatpur having cellular numbers 94124- 25745 stayed at Taj Hotel from 18.1.2006 to 20.1.2006. Suffice to note here that these two witnesses did not say about their personal knowledge of visiting Dhanesh or any other person at their Hotel. Whatever fact stated by them is on basis of the register. These two witnesses have also not stated anything about accused Narpat. 38. The prosecution also tried to establish its theory of conspiracy while relying upon a visitors register seized from Hotel Raneja, wherein an entry is available with regard to staying of Sunil Kumar son of Kartar Singh with three other persons at the Hotel concerned in Room No. 201 on 5.1.2006 and 6.1.2006. The entry made in the register is established with the aid of the statements of PW-25 Shri Hariram. We do not consider it appropriate to discuss much about the entries referred above in view of the fact that the investigation is yet pending against three persons who as per the prosecution stayed at the Hotel aforesaid. However, the entries made in the register in no manner connects accused Narpat with the person/persons said to be stayed at Hotel Taj or at Hotel Raneja. However, the entries made in the register in no manner connects accused Narpat with the person/persons said to be stayed at Hotel Taj or at Hotel Raneja. No other evidence is available on record to establish the efforts of this accused in lodging the persons concerned at the Hotels above mentioned or at any other place. An important fact that deserves notice is that the lodging at Hotel Raneja was made 15-16 days earlier to the date of occurrence and the date of staying at Hotel Taj is 2-4 days days earlier from the date of incident. At Hotel Taj the entry is only with regard to stay of one person and not of four persons as referred in the visitors entry register pertaining to Hotel Raneja. This circumstance is further extended by getting testimony of Haji Chand Mohammad (PW-29) examined. Haji Chand Mohammad, a resident of Fatehpur Sikari (Uttar Pradesh), stated that he purchased a Tata Sumo bearing number RJ-13-C-4076 from Jaipur and Badal son of Dhanesh Chand was employed with him as driver. On 4.1.2006 Dhanesh borrowed the vehicle aforesaid from him to visit Jodhpur. Badal went to Jodhpur on 5th and returned either on 7th or 8th of January. As per this witness Badal came Jodhpur to meet his Bhua. The statements of this witness are not of much help for the prosecution. The stay of Badal and three persons at Jodhpur would have been of much importance if the prosecution had other cogent evidence to connect the accused persons with Badal and his team. As a matter of fact no evidence at all is available even to establish identity of co- travelers of Badal. In view of the fact that one accused Javed is facing trial and investigation is pending against three accused persons, we do not consider it appropriate to discuss much about the argument of counsel for the appellants that if Badal was acting under a conspiracy then he would have not disclosed his destination to Haji Chand Mohammad. 39. The theory of conspiracy is further knitted by the prosecution with the aid of certain call details procured during the course of investigation and produced in the evidence through Investigating Officer Harjiram (PW-35). The details are pertaining to cellular phone numbers 9314704787, 9314706280, 9314639720 and 9414914752. 39. The theory of conspiracy is further knitted by the prosecution with the aid of certain call details procured during the course of investigation and produced in the evidence through Investigating Officer Harjiram (PW-35). The details are pertaining to cellular phone numbers 9314704787, 9314706280, 9314639720 and 9414914752. Suffice to mention here that neither any handset nor any SIM using the phone numbers above was seized or recovered by the investigating agency during the course of investigation. Before availing the call details the Superintendent of Police (Rural), Jodhpur vide a letter dated 2.3.2006 (Ex.P-52) demanded names and addresses of the mobile phone holders having SIM numbers 9314704787, 9314706280 and 9314639720 from the Manager, Reliance Telecommunication Ltd. While demanding details as above a request was also made to supply the facts demanded on letter pad of the company. The details as desired under the communication Ex.P-52 were supplied on a plain paper by putting a rubber seal of "Reliance Web World, 3rd Sardarpura, Jodhpur". The document is available on record as Ex.P-53. The information supplied therein is in handwriting and the author of that was not called and produced in evidence. PW-35 Haijiram stated that he availed the information through Sushri Ragini Vyas, Customer Care Executive, Reliance Web World, Sardarpura, Jodhpur and the document was signed by her. As per the document Ex.P-53 the SIM No. 9314704787 was in the name of Bhanwar Rajput, 9314706280 was in the name of Narpat Choudhary and 9314639720 was in the name of Kamal General Store. Ex.P-75 is photocopy of the STD PCO register and as per the prosecution from this STD booth accused Bhanwar Singh had conversations with Hemlata on cellphone No. 9314706280 on 22.1.2006 and 23.1.2006. As per witness PW-37 Shri Ram Singh, the first Investigating Officer, the Superintendent of Police (Rural), Jodhpur under a communication dated 22.3.2006 (Ex.P-85) desired information from the General Manager, BSNL, Jodhpur about cellphone No. 9414914752. In response thereto, call details as per Ex.P-86 were supplied. This witness marked the details relating to conversation from this cell number with other accused persons. The call details pertaining to cellphone numbers 9314706280 and 9314704787 were demanded from Reliance Web World as per Ex.P-87. The call details were supplied as per document Ex.P-88 and according to PW-35 Shri Ram Singh those SIM numbers were used by accused Hemlata and Narpat. The call details pertaining to cellphone numbers 9314706280 and 9314704787 were demanded from Reliance Web World as per Ex.P-87. The call details were supplied as per document Ex.P-88 and according to PW-35 Shri Ram Singh those SIM numbers were used by accused Hemlata and Narpat. This witness also stated about the call details demanded from Divisional Engineer, OCB Exchange, BSNL, Sardarpura pertaining to land line basic telephone number 2546017 installed -at the residence of deceased Shri Suresh Sharma. The details from the Chief Engineer, BSNL were demanded as per Ex.P- 90 and the call details were supplied in pursuant thereto under the document Ex.P-91. 40. On basis of the call details gathered the prosecution made an effort to establish formation of a criminal conspiracy to execute the crime in question. As already discussed earlier the cellular handsets and SIM cards pertaining to cell numbers referred above were neither seized nor recovered by the investigating agency. The cell numbers aforesaid are sought to be connected with the accused persons on basis of the information given by Sushri Ragini Vyas tinder Ex.P-53.The document Ex.P-53 is not a document electronically generated but a handwritten one. The author of the document was not brought in witness box, thus, the connectivity of the call numbers referred in document Ex.P-53 is highly doubtful. Nothing is available on record establish the source on basis of that the cell numbers referred above were connected with the accused persons under the document Ex.P-53. So far as the cellphone number 9414914752 is concerned, suffice to note that though under the document Ex.P-85 the Superintendent of Police (Rural), Jodhpur demanded. the details of the consumer using that phone but the Divisional Engineer of the BSNL supplied the call details only as per the document Ex.P-86. No details relating to the consumer of the phone aforesaid were supplied, as such the cellular phone bearing No. 9414914752 cannot be conclusively connected with accused Bhanwar Singh. 41. the details of the consumer using that phone but the Divisional Engineer of the BSNL supplied the call details only as per the document Ex.P-86. No details relating to the consumer of the phone aforesaid were supplied, as such the cellular phone bearing No. 9414914752 cannot be conclusively connected with accused Bhanwar Singh. 41. Shri Jagmal Singh Choudhary, learned Senior Advocate, arguing on behalf of the accused appellants straneously urged that as a matter of fact the call details on which the trial Court heavily relied upon are not even admissible in evidence being not produced as per the conditions set out in Section 65B of the Indian Evidence Act, 1872, that reads as under: "65-B. Admissibility of electronic records.-(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,,; - (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it si all be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 42. Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 42. Section 65-A of the Indian Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record i.e. the contents of a document or communication printed on a paper that has been stored, recorded and copied in optical or magnetic media produced by a computer, is deemed to be a document and is admissible in evidence without further proof of the originals production, provided that the conditions set out in Sections 65-B (2) to 65-B(5) are satisfied. 43. The submission made on behalf of the accused appellants is that the prosecution has neither produced the certificate under Section 65-B(4) nor produced any competent witness acquainted with the functioning of the computer during the relevant time and the mariner in which the print outs of the call records were taken. 44. We find force in the argument advanced. In the instant matter the call details made available are certainly "electronic record" for the purpose of evidence. However, those are produced without a certificate from person in- charge of the computer system regarding the details of the system, process of data storage and the safeguard to protect computer system and data. No certificate is produced from the person in-charge of the computer system to the effect that to the best of his knowledge, the computer system wherefrom the print outs were taken, operated properly at the material time. No certificate of such person in-charge is produced to the effect that he was provided with all the relevant data and also that the print outs of the call details represents correctness or are appropriately derived from the data. 45. No certificate of such person in-charge is produced to the effect that he was provided with all the relevant data and also that the print outs of the call details represents correctness or are appropriately derived from the data. 45. In State (NCT of Delhi) v. Navjot Sandhi @ Afsan Guru, reported in AIR 2005 SC 3820 , Hon'ble Supreme Court, while negativating the argument that no reliance could be placed on mobile phone call records, because the prosecution has failed to produce the relevant certificate as per Section 65-B(4) of the Evidence Act, concluded that a competent witness acquainted with the functioning of the computer during the relevant time was examined and the manner in which print out of the call records were taken - was sufficient to prove all the call records. Hon'ble Supreme Court in the case aforesaid drew a legitimate presumption about the systematic functioning of computer system irrespective of deposing of facts by witness in this regard looking to the regularity and continuity exhibited by the prosecution in availing computer output. 46. In the case under adjudication, neither the certificates as required are produced nor the testimony of person acquaint with computer system giving output is examined. No material is also available to establish continuity and regularity of the system giving output (the call details). The identification of the telephone numbers and the other call details were given to the investigating agency by Sushri Ragini Vyas, Executive, Customer Care Unit. The call details produced are electronically generated documents and Sushri Ragini Vyas, Executive, Customer Care Unit, is not in-charge of the computer system, and no material is available on record to establish her acquaintance with the system. Even otherwise, she has not supplied any certificate as required. 47. In the case of State (NCT of Delhi) v. Navjot Sandhi @ Afsan Guru (supra) Hon'ble Supreme Court, while noticing the provisions of Section 65-B of the Indian Evidence Act, held that that the print outs taken from the computers/servers by mechanical process and certified by the responsible officer of the service provider company can be led to the evidence through a witness who can identify the signatures of the certifying officer or otherwise based on his/her personal knowledge. In the present case this eventuality too is not available as neither the certificate of relevant and competent person is produced nor any person acquainted to him/her was brought before the Court as witness. It is further pertinent to note that the identification of the cellphone numbers was given by the Executive, Customer Care in handwriting and, therefore, i.e. not an electronically generated document. Nothing is available on record to establish as to how such identification was made. In view of the discussions made above, connectivity of the accused appellants with the cell numbers given is quite doubtful and the call details produced too are not at all sufficient to satisfy their acceptance. 48. The next important circumstance against accused Narpat is recovery of Maruti Van with blood stains at its rear meting and at the back of driving seat. According to PW-37 Shri Ram Singh, accused Narpat as per Ex.P-69 made a disclosure on 27.1.2006 about the vehicle i.e. Maruti Van No. GJ-05-A-1512, wherein body of deceased was alleged to be transported. On basis of the disclosure made the investigating agency on 27.1.2006 itself recovered a Van, recovery memo of that is available on record as Ex.P-5. The vehicle aforesaid was recovered from the road side i.e. in front of the house of Narendra Singh (PW-6) situated in Sector-2, Kudi Bhagtasani Housing Board, Jodhpur. The motbirs of the recovery were Hariram (PW-3), Gomad Ram (PW-5), both police personnels and Narendra Singh (PW-6). As per Narendra Singh (PW-6) the Maruti Van was purchased by one Shri Anil Christian through accused Narpat about 1/2 years earlier. The Van then was purchased by Narpat and after few days he sold that to someone else. The fact about purchase of Van by Narpat was conveyed to this witness by Narpat himself. This witness being desirous to purchase the Van made a request in this regard to accused Narpat. PW-6 Narendra Singh further stated that in the morning of 23.1.2006 at about 7.30-7.45 hours accused Narpat came to him with Maruti Van and left the same with him to get that engaged with some school. The key of the vehicle was also given to this witness and the vehicle at that time was in working condition. During the cross-examination this witness stated that the vehicle was not unlocked by him, therefore, he was not having any knowledge about the blood stains available. The key of the vehicle was also given to this witness and the vehicle at that time was in working condition. During the cross-examination this witness stated that the vehicle was not unlocked by him, therefore, he was not having any knowledge about the blood stains available. Interestingly enough, this witness in his chief stated that he got the Van examined from a mechanic, who told that the vehicle requires expenses of Rs. 700-800. It is a fact known that the engine and other operational system of Maruti Van is situated just below the driving seat and that can be examined only by opening the Van and by removing the driving seat. We failed to understand that how the mechanic called by this witness examined the vehicle without opening the Van. We are of the view that either the fact about examination of vehicle by mechanic is wrong or the statement of not unlocking the Van is false. The fact about examination of vehicle by a mechanic is quite obvious as PW-6 Narendra Singh was interested in purchasing the vehicle. In these circumstances we are having serious doubts about statement given by this witness for not opening/ unlocking the Van. The key of the vehicle was with this witness, this witness was interested in purchasing the Van and the vehicle remained with him for good four days from 23.1.2006 to 27.1.2006. The possibility of unlocking the vehicle, therefore, cannot be denied. An another witness Hemraj (PW-17) also deposed that the Maruti Van bearing No. GJ-05-A-1512 was in custody of Narpat though the registration of the same was in his name. 49. The blood stains, as per the prosecution were available on the back of the driving seat and at rear meting. The blood stains though were found of human origin, but their group was not determined. On minute examination of the evidence discussed above the conclusion derived can only be to the extent that the Maruti Van was in possession of accused Narpat and he left that with Narendra Singh on 23.1.2006. No definite conclusion can be drawn about use of the Van for transporting dead body of deceased Shri Suresh Sharma. On minute examination of the evidence discussed above the conclusion derived can only be to the extent that the Maruti Van was in possession of accused Narpat and he left that with Narendra Singh on 23.1.2006. No definite conclusion can be drawn about use of the Van for transporting dead body of deceased Shri Suresh Sharma. The position would have been different if PW-6 Narendra Singh would have come forward without any contradiction about opening of the vehicle and mechanical examination of that, coupled with determination and matching of the blood group of blood stains with the blood group of deceased. In totality the circumstance of the recovery of Van too is not conclusive and is not sufficient to form unbreakable chain of circumstances indicating towards only one conclusion i.e. commission of crime by the present accused.Accused Bhanwar Singh 50. The case of the' prosecution upon which the trial Court relied and convicted this accused is availability of motive and participation in criminal conspiracy. While relying upon the statements of PW-12 Smt. Sayri, the trial Court arrived at the conclusion that the accused was having unauthorised possession over the plots owned by the lady aforesaid to whom deceased extended a hand of help, because of that he was keeping vengeance with deceased. As per Smt. Sayri (PW-12) she sold two bighas of land to one Shri Narain Singh about 20 years back, however, Narain Singh by fraud occupied ten bighas of land, thus, she was in litigation with Narain Singh. She ultimately succeeded in that, consequently, Bhanwar Singh, who was having possession over some part of the land, was to be dispossessed therefrom. In getting Bhanwar Singh ousted from the land, deceased Shri Suresh Sharma was assisting Smt. Sayri. For this reason Bhanwar Singh was keeping vengeance with deceased and he also gave threat for killing this witness and. also to deceased Shri Suresh Sharma in event of getting him oust from the plots under his possession. 51. The another circumstance against this accused is based on telephonic calls said to be made by him to other co-accused from a STD-PCO booth situated in village Chadi. The trial Court relied upon the STD PCO Booth register i.e. having entries of making call to cellular phone No. 9314100280 on 22.1.2006 and on 23.1.2006. 51. The another circumstance against this accused is based on telephonic calls said to be made by him to other co-accused from a STD-PCO booth situated in village Chadi. The trial Court relied upon the STD PCO Booth register i.e. having entries of making call to cellular phone No. 9314100280 on 22.1.2006 and on 23.1.2006. Suffice to mention here that the STD-PCO booth agent Bhanwar Singh (PW-32) has not supported the prosecution case, thus, it cannot be said that the calls were made by the accused. Beside that, the call details produced too are unacceptable being not proved. Necessary discussion in this regard has already been made while dealing the case of accused Narpat. 52. A disclosure was also made by accused Narpat on 22.1.2006 about recovery of money from Rajawat Tent House and Ambika Motors. As per the information memo Ex.P-77 accused Narpat stated that "supari" to kill Shri Suresh Sharma was taken from accused Bhanwar Singh for a sum of Rs. 1,50,000/-. A sum of Rs. 70,000/- was received by him as advance. Out of that Rs. 55,000/- were paid to Dhanesh, Badal etc. and a sum of Rs. 15,000/- was kept by him. Rs. 10,000/- were given by him to Rajawat Tent House against consideration for purchase of Maruti Van and a sum of Rs. 4,000/- was paid to Ambika Motors wherefrom he got the Van repaired. On basis of the information aforesaid no recovery was realised. The owners of Rajawat Tent House and Ambika Motors too came into witness box as prosecution witnesses, however, they did not support the prosecution case. Surprisingly enough, the trial Court used all the contents of document Ex.P-77 against this accused, though the disclosure was only with regard to recovery of the money, which as a matter of fact was never made. 53. The trial Court, while recording conviction, accepted that accused Hen-data and Narpat had a common motive and accused Bhanwar Singh was having a different motive for eliminating Shri Suresh Sharma and to achieve that they entered into a criminal conspiracy. To execute the criminal conspiracy, four persons from Uttar Pradesh were hired for a consideration of Rs. 1,50,000/-. On the fateful day Shri Suresh Sharma was called at the house of accused lien-data and Narpat, where he was killed. His body then was transported in a Maruti Van and was defaced and thrown in bushes. To execute the criminal conspiracy, four persons from Uttar Pradesh were hired for a consideration of Rs. 1,50,000/-. On the fateful day Shri Suresh Sharma was called at the house of accused lien-data and Narpat, where he was killed. His body then was transported in a Maruti Van and was defaced and thrown in bushes. The conclusion arrived by the trial Court in view of the appreciation of the evidence discussed above appears to be highly doubtful. 54. So far as the motive said to be available to Hemlata and Narpat is concerned, i.e. absolutely ill founded. The evidence available is only to the extent that these accused and deceased were known to each other and had cordial relations. No reason or fact is available on record to establish vengeance or even annoyance of accused persons with deceased Shri Suresh Sharma. On the contrary, even as per Smt. Meena, wife of the deceased, and Shri Navneet, his son, accused Narpat and Hemlata were having normal relations with deceased. True it is, in a case governed by the circumstantial evidence the requisite is only probable motive and not cogent one, but probable motive too should be based on definite evidence. In present case no such evidence is put forward. 55. To establish motive of accused Bhanwar Singh, the trial Court relied upon the statements of Smt. Savri (PW-12) and i.e. quite probable one. Accused Bhanwar Singh was having possession over a part of land pertaining to which Smt. Sayri had a positive claim. Deceased was supporting her and, therefore, in view of the statements given by Smt. Sayri this accused may had some grievances even upto the extent of vengeance with deceased. However, to establish involvement in the crime, motive is required to be further connected with other existing circumstances indicating affirmative involvement of the accused therein. 56. In the instant matter the most important factor in connecting the chain of circumstances is constitution of criminal conspiracy. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. In pursuance to the criminal conspiracy the conspirators commit several offences even if some of them had not actively participated in the commission of the offences. In pursuance to the criminal conspiracy the conspirators commit several offences even if some of them had not actively participated in the commission of the offences. ( AIR 1987 SC 773, State of Himachal Pradesh v. Krishan Lal Pradhan & Ors. ). It is also quite difficult to adduce direct evidence to establish criminal conspiracy as i.e. always hatched in secrecy. This offence can be proved largely from inferences drawn from acts or illegal omissions committed by conspirators in pursuance of a common design. ( AIR 1980 SC 439 , Shivanarayan Laxminarayan Joshi & Ors. v. State of Maharashtra & Ors. ). As such, there must be evidence at least sufficient to draw inference about the meeting of minds for causing wrong.In the case in hand, the prosecution utterly failed to put forward any evidence indicating meeting of minds of accused persons. An effort was made to establish criminal conspiracy by placing reliance upon the phone call details, but those are not acceptable for the reasons given while considering the evidence adverse to accused persons, specially with regard to accused Narpat. Similarly, the evidence adduced by the prosecution to draw inferences about a conspiracy on basis of the visitors entry registers of Hotel Taj and Motel Raneja is also inadequate. The evidence adduced in this regard in no manner connects the accused persons with the person said to be lodged in the hotels aforesaid.The other circumstance i.e. recovery of blood stained stone (chunni) and Maruti Van too is of no consequence for the reasons already given. The evidence available on record to establish the theory of giving "supari" by accused Bhanwar Singh to eliminate Shri Suresh Sharma is absolutely inconclusive and as a matter of fact not even can be termed as an evidence acceptable.As such, we are of the view that the circumstances available are not of the nature sufficient to draw a definite conclusion about involvement of accused appellants in the crime in question. The evidence adduced on its appreciation is not worth to form a continuous and unbreakable chain of circumstances indicating only one conclusion i.e. involvement of accused appellants in the act of eliminating Shri Suresh Sharma. A reasonable doubt, thus, exists in accepting the prosecution case that the accused appellants murdered Shri Suresh Sharma while executing a criminal conspiracy. 57. The appeals, hence deserve acceptance. Accordingly, the same are allowed. A reasonable doubt, thus, exists in accepting the prosecution case that the accused appellants murdered Shri Suresh Sharma while executing a criminal conspiracy. 57. The appeals, hence deserve acceptance. Accordingly, the same are allowed. The impugned judgment dated 10.1.2008 in Sessions Case No. 3/2006, passed by Additional Sessions Judge (Fast Track) No. 2, Jodhpur, State v. Smt. Hemlata & Ors. , recording conviction and awarding sentences to the accused appellants is hereby quashed. The accused appellants are acquitted from the charges settled against them. Let they be released forthwith from State custody, if not otherwise required.Appeals Allowed. *******