JUDGMENT : 1. - Heard the learned Amicus Curiae for the appellant as well as learned Public Prosecutor. 2. This jail appeal, registered under Section 383 Cr.P.C., is preferred to question the correctness of the judgment dated 12th November 2003 passed by the learned Additional Sessions Judge, Fast Track, Sriganganagar in Sessions Case No. 48/2003 - State v. Ranjit @Arjun , convicting the accused-appellant - Ranjit @ Arjun s/o. Lalu Prasad Tatya for the offence punishable under Sections 302 IPC and sentenced him for offence under Section 302 IPC - to undergo life imprisonment, along with fine of Rs. 1,000/- in default of payment whereof to further undergo one year's simple imprisonment. 3. Briefly stated, the prosecution case is that on 03.07.2003 at around 4.30 A.M. complainant Dharampal s/o. Ramji Lal Kumhar orally informed at Police Station, Kotwali, Sriganganagar; which was reduced in writing by Ranjeet Singh, Sub Inspector, Station House Officer of the Police Station; inter alia, stating that he resides at 80, Gandhinagar and he has sweet shop in the name of "Jaishankar Misihan Bhandar", where four labour Ranjit, Anil, Chunmun and Laxman work. Lakhan had come from his village two days ago. On 02.07.2003. He slept in his home while above four servants slept on 'thada' (platform) in front of his house. 4. In the morning at 03 O'clock Chunmun awakened his younger brother Jagdish Prasad and told him that Lakhan is having bleeding. They came outside and saw that Lakhan was lying dead on the 'thada'. On whose neck there was injury by sharp weapon. Some unknown person has murdered Lakhan resident of Asiya, PS Gayaghat (Bihar) some time during night. 5. Upon this oral report, FIR No.256/2003 (Ex.P10) was registered by Ranjeet Singh, S.I., Station House Office of PS Kotwali, Sriganganagar. During investigation, site-plan of the incident (Ex.P1) and panchnama of dead body of Lakhan (Exs-P3) were prepared; pieces of papers (Ex.P4, P27 & Ex. P32), visiting-card (Ex.P28), letter (Ex.P29), Bill (Ex.P30), visiting card (Ex.P31) and telephone diary (Ex.P37) found from deceased were seized; soil sample was taken vide Ex.P5 & Ex.P6, blood-stained gin-bag and clothes were seized vide Ex.P7 and Ex.P8, relevant photographs are Exs.P18 to P20 along with negatives Exs.P1 8A to P20A. 6. The post mortem (Ex.P 17) of deceased Lakhan was conducted by Dr. 6. The post mortem (Ex.P 17) of deceased Lakhan was conducted by Dr. B.N. Sharma (PW8) and statements of witnesses - Jagdish (Ex.PH), Anil (Ex.P12) and Chunmun @ Vijay (Ex.P 13) were recorded. During course of investigation, the accused-appellant was arrested on 08.07.2003 (Ex.P33) and upon his information under Section 27 of the Evidence Act (Ex.P34), pant-bushirt (Ex.P 14) and blood-stained knife (Ex.P15) was recovered at his instance and sent to FSL for analysis. FSL report regarding these articles (knife, pant-bushirt and concrete) for which FSI report is Ex.P36. 7. After due investigation, Police filed challan against accused-appellant for offence punishable under Section 302 IPC, before the Chief Judicial Magistrate, Sriganganagar. The case was committed to the court of Sessions and assigned to the court of Additional Sessions Judge (FT), Sriganganagar for trial. On 23.09.2003, charge of offences under Section 302 IPC was framed against the accused, appellant Ranjit @ Arjun, who denied the allegation of crime and claimed trial. 8. During the trial, the prosecution supported its case by producing 12 witnesses and exhibited 37 documents as also Articles 1 to 12. The accused-appellant was provided opportunity to explain the adverse circumstances available in the prosecution evidence under Section 313 Cr.P.C., wherein he negated the prosecution evidence and pleaded innocence and false implication in the case. In defence, however, no oral or documentary evidence was produced or exhibited on behalf of accused-appellant. 9. The learned Additional, Sessions Judge, while relying upon testimony of the prosecution witnesses, held the accused-appellant guilty for commission of offence punishable under Section 302 IPC vide impugned judgment dated 12th November 2003 and sentenced him as mentioned herein above. Aggrieved of the judgment of conviction and sentence, the accused-appellant has preferred present appeal from Jail which was registered on 15.01.2004. 10. In appeal, the learned amicus curiae Dr. A.A. Bhansali submitted that the incident pertains to intervening night of 2-3 July, 2003 and FIR was registered against unknown person. As per Investigation Officer, accused-appellant was named by witnesses Anil (PW4) and Chunmun (a) Vijay (PW5) but both these witnesses have been declared hostile. So, in fact, there is no eye-witness of this incident and the prosecution case is based wholly upon circumstantial evidence, like homicidal death of deceased Lakhan and recovery of clothes, knife etc. at the instance of accused-appellant. 11. Learned counsel for the accused-appellant Mr. So, in fact, there is no eye-witness of this incident and the prosecution case is based wholly upon circumstantial evidence, like homicidal death of deceased Lakhan and recovery of clothes, knife etc. at the instance of accused-appellant. 11. Learned counsel for the accused-appellant Mr. Bhansali submitted that the trial court has not appreciated the evidence on record in correct perspective, which has resulted in erroneous finding arrived at by the learned Additional Sessions Judge. This case is, therefore, based on circumstantial evidence, from which conclusion of guilt to be drawn should be fully established. The circumstances concerned "must or should" and not "may be" established. The facts so established should be consistent only with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should he of conclusive nature & tendency and they should exclude any possible hypothesis except the one to be proved. 12. Learned counsel for the accused appellant further contended that the prosecutor can not put leading question on material part of evidence, which a witness intends to give against the accused. The discretion of the court must only be controlled towards that, but a question which suggests to the witness, the answer the prosecutor expect., must not he allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. 13. Learned counsel for the accused-appellant further contended that in the evidence of the prosecution there are material contradictions and improvements, judgment based upon which is bad in the eye of law and hence, liable to he quashed and set aside in the interest of justice. 14. It is also submitted that recovery of said weapon of crime and clothes of accused-appellant, as also report of the Forensic Science Laboratory can not be relied upon in the facts, circumstances and the evidence on the record. The recovery of weapon (knife) and alleged clothes of the accused-appellant was made from open place while wall of said 'nohra' was broken (dilapidated). There is no evidence that recovered clothes belong to accused - PW6 Mula Ram and PW7 Mahaveer Prasad are Police Constables. This is fatal for the prosecution in the facts and circumstances of the case, so the recovery is doubtful and conviction based thereupon is not justified. 15. There is no evidence that recovered clothes belong to accused - PW6 Mula Ram and PW7 Mahaveer Prasad are Police Constables. This is fatal for the prosecution in the facts and circumstances of the case, so the recovery is doubtful and conviction based thereupon is not justified. 15. As per evidence of PW2 Dharampal and PW3 Jagdish, accused-appellant was present at the spot when Police/Investigation Officer came at the spot for investigation but the appellant-accused was not arrested at the spot. So, the prosecution case is highly doubtful in this regard also. 16. Learned counsel for the accused-appellant further submitted that the prosecution evidence is too poor to satisfactorily establish any of the circumstance for holding the accused-appellant guilty of the offence of murder of his own colleague. As none of the circumstances was sufficiently proved, there is no question of taking them as links, forming an unbroken chain that leads to only possible inference regarding accused-appellant's guilt. In support of his submissions, learned amicus curiae relied upon judgments rendered in cases of Varkey Joseph v. State of Kerala, AIR 1993 SC 1892 , Muthu v. State of Karnataka : 2003 CJ(Cr.) (SC) 82 , Ishwar LaL @ Mukesh @ Pappu v. State of Rajasthan 2004 CJ (Cr.) (Raj) 746 and Sunil Rai @ Pauna & others v. Union Territory, Chandigarh : AIR 2011 SC 254.5 , which gives us guidelines in the facts, circumstances and the evidence available in this case. 17. On the other hand, while opposing the arguments advanced and defending the judgment impugned, the learned Public Prosecutor submitted that in the present case, there is complete chain of circumstantial evidence, which permit no conclusion other than one of guilt of the accused-appellant. It is contended that the trial court has elaborately considered the evidence on the record and the finding arrived at after due appreciation of evidence, does not suffer from any infirmity, illegality or perversity, so as to warrant interference by this Court. It is further submitted that the evidence of the prosecution witnesses is reliable; recovery is from Nohra, which is not open place and both recovery witnesses are reliable. The evidence of police constables cannot be discarded merely because they are police officials. 18. It is further submitted that the evidence of the prosecution witnesses is reliable; recovery is from Nohra, which is not open place and both recovery witnesses are reliable. The evidence of police constables cannot be discarded merely because they are police officials. 18. The learned Public Prosecutor further submitted that the cases relied upon by the counsel for the accused-appellant are distinguishable on facts and do not in any manner apply to the facts of the instant case. The charge against the appellant stands proved beyond reasonable doubt by convincing legal, cogent, reliable and natural evidence and, therefore, the conviction and sentence awarded by the trial court deserve to be affirmed against the accused-appellant. 19. We have considered the submissions of the learned counsel appearing for the accused-appellant as well as the learned Public Prosecutor and also scanned through the entire evidence available on record of the trial court. 20. Among prosecution witnesses PWI - Shambhu Choudhary was cited as witness to preparation of site-plan (Ex.PI) as also for Exs. P2 to P9, however, he deposed that site-plan was not prepared before him at the place of incident but his signature was obtained at the Hospital. He also denied preparation of Panchnama, seizure memos etc. by Police in his presence and deposed that Police obtained his signature on blank papers. 21. PW2 Dharampal. complainant, in whose shop accused-appellant was working, was cited as witness of FIR No.256/03 (Ex.P10), site plan (Ex.Pl) and Panchnama of deceased Lakhan (Ex.P2). PW3 Jagdish, brother of Dharampal, was cited as witness whom servant Chunmun firstly informed about the incident, PW4 Anil Kumar and PW5 Chunmun (a Vijay, servants working with accused- appellant Ranjit, were cited to prove the incident but these witnesses were declared hostile by the prosecution. PW6 Mula Ram & PW7 Mahaveer Prasad (police constables) were cited as motbirs of Ex.P14 and Ex.P15 (recovery of pant, shirt and knife), who deposed in their court statement that wall of the 'nohra' from where above said recovery was made, was broken and they do not know who is owner of 'nohra' and anybody can come to go there. PW9, PW 10 & PW 11 are other police officials while PW 12 Ranjeet Singh, SI was the Investigation Officer. 22. PW8 Dr. B.N. Sharma conducted post mortem of dead body of deceased Lakhan. PW9, PW 10 & PW 11 are other police officials while PW 12 Ranjeet Singh, SI was the Investigation Officer. 22. PW8 Dr. B.N. Sharma conducted post mortem of dead body of deceased Lakhan. As per post mortem report (Ex.P 17), following two injuries were found on the person of deceased Lakhan: (i) Incised wound 2" x ¼" above Rt Sterno Clavicular joint - bone deep (ii) Incised wound 1½" x ¼" x cavity deep, Left Hypochondrium area below costal margin Left to mid-line Both injuries were reported ante-mortem in nature. Cause of death is opined hemorrhage & shock due to injury to Rt.Carotid vessel. 23. It is not and cannot be disputed that deceased Lakhan died homicidal death. There is no challenge to the medical evidence of Dr. B.N. Sharma (PW8), post mortem report (Ex.P 17) and cause of death. I having scrutinised the medical evidence, we find that the prosecution is able to establish that the death of Lakhan was homicidal in nature. 24. In this case, the FIR was lodged on 03.07.2003 at 04:30 A.M. by Dharampal (PW2), who is owner of Jai Shanker Misthan Bhandar, where 04 labours - deceased Lakhan, accused Ranjit@Arjun, alleged eye-witnesses Anil Kumar (PW4) and Chunmun alias Vijay (PW5) and who both were declared hostile, were working. Indisputably, there is no direct evidence and the prosecution case is founded on the circumstantial evidence. 25. It is well settled law that before conviction to he based on proof of circumstantial evidence, the circumstances from which an inference of guilt is sought to drawn, must he cogently and firmly established. The circumstances should be of definite tendency and should unerringly point towards guilt of the accused. The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within human probabilities the crime, was committed by the accused and none else. 26. The circumstantial evidence, in order to sustain conviction, must he complete and incapable of explanation on any other hypothesis than that of guilt of the accused and such evidence should not only he consistent with guilt of the accused but should also be inconsistent with his innocence. 26. The circumstantial evidence, in order to sustain conviction, must he complete and incapable of explanation on any other hypothesis than that of guilt of the accused and such evidence should not only he consistent with guilt of the accused but should also be inconsistent with his innocence. So, there can not be any doubt that conviction can he based upon circumstantial evidence but the prosecution 1st establish that the chain of circumstances only consistently pointed out to guilt of the accused and is inconsistent with his innocence. 27. The circumstances as is well-known, from which an inference of guilt is sought to he drawn, are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that, within all human probabilities, the accused committee the crime. 28. Thus, in the backdrop of settled principles as noticed above, we have adjudge as to whether the circumstances on which the prosecution relics, are established by clear and cogent evidence beyond reasonable doubt and whether cumulative effect of the circumstances said to be proved, excludes every other hypothesis save one that the accused-appellant is guilty of the charges impugned. 29. Coming to next circumstance and important evidence against the accused-appellant, namely - recovery of certain incriminating articles, pursuant to statement made by the accused-appellant under Section 27 of the Evidence Act and recovered during investigation of the case by the Investigating Officer. During the investigation, PW 12-Ranjeet Singh. Sub Inspector, the Investigating Officer of the case prepared recovery memos in respect of said blood-stained clothes of accused-appellant (Ex.P 14) and knife (Ex.P15) on 10th July 2003, in the presence of Mula Ram (PW6) and Mahaveer Prasad (PW7)-motbirs of recovery memos, who both are the Police Constables and deposed that wall of the 'nohra' was broken and they did not know who is owner of said 'nohra'. Anyone could have come and gone into the 'nohra' from where said recovery was made. At the time of recovery, gate of the 'nohra' was open and there was no lock. 30. The Investigating Officer Mr. Anyone could have come and gone into the 'nohra' from where said recovery was made. At the time of recovery, gate of the 'nohra' was open and there was no lock. 30. The Investigating Officer Mr. Ranjeet Singh, Sub Inspector (PW12) also deposed in his court statements that knife and pant-shirt of accused-appellant were recovered by him vide recovery memos Ex.P14 and Ex.P15 from the 'nohra', where general public can come and go and wall of the 'nohra', was broken, so also, there was no blood on the bricks. 31. We have gone through the entire recovery evidence, PW 12 Ranjeet Singh, the Investigating Officer, deposed that he has not taken measurement of pant-shirt recovered by him. In the facts and circumstances of the case, assuming that the clothes were recovered but there is no evidence on record to show that these clothes were belonging to accused-appellant. It is because of this lacuna in the prosecution case that we are unable to hold that those recovered clothes have any nexus with the accused-appellant. It is apparent that there is no independent witness of recovery memos, even though they could be easily available to the prosecution. Thus, the above facts create suspicion as to recovery of clothes and knife. 32. It is also relevant to mention that the seal, by which the recovered articles were seized, arc supposed to be given to independent witness. The seals are not meant to be kept either with the Investigating Officer or with the Malkhana in-charge because possibility of tampering with the seized articles cannot be ruled out. Therefore, the recovery of articles becomes doubtful and there is every possibility of tampering with the recovered articles. In these circumstances, we are unable to hold that the prosecution has conclusively established any nexus of these recovered articles with the present crime. We, thus, find that the prosecution could not establish this circumstance bey-one reasonable doubt. 33. Having considered entire evidence, in our opinion the prosecution case suffers from serious lacuna and provides ample reasons to have serious doubts to believe the prosecution case. This benefit of doubt is required to be extended in favour of accused-appellant. We have also examined correctness of the findings given by the trial court. From the above mentioned lucid test to the facts of instant case. This benefit of doubt is required to be extended in favour of accused-appellant. We have also examined correctness of the findings given by the trial court. From the above mentioned lucid test to the facts of instant case. we find that evidence adduced at the trial is not qualitatively an unbreakable chain of circumstances such that on every reasonable hypothesis. conclusion is that the appellant is guilty. The prosecution failed to establish beyond reasonable doubt that the appellant was the guilty. In the ultimate analysis, we do not find that the evidence adduced by the prosecution created a network through which there is no escape for the appellant. The facts taken as a whole do not admit any inference of his guilt. 34. The prosecution, in our considered opinion, could not prove beyond reasonable doubt that the appellant committed the offence alleged. It is proved by the prosecution evidence that the appellant was sleeping on a "rehadi" but that "rehadi" was not taken in possession by the Investigating Officer during the investigation. In the totality of the prosecution evidence, facts and the circumstances we are, therefore, of the view that the trial court was not justified in convicting the accused-appellant in this case. 35. For the aforesaid conclusion, we are unable to uphold conviction of the accused-appellant for commission of offence punishable under Section 302 IPC. Accordingly, the appeal is allowed and the impugned judgment dated 12 November, 2003 passed by learned Additional Session Judge (Fast Track), Sriganganagar convicting the accused-appellant Ranjit @ Arjun for offence under Section 302 IPC and sentencing him to undergo imprisonment for life, is hereby set aside and the appellant Ranjit @ Arjun is acquitted from the charge levelled against him by the trial court. 36. The appellant Ranjit @ Arjun s/o. Lalu Prasad Tatya, who is in jail, be released forthwith, if not required in any other case for any other purpose. *******