JUDGMENT Sudhanshu Dhulia, J. (Oral) 1. These are the four appeals before this Court against the same judgment and order dated 7.11.2003 passed by the Additional Sessions Judge/First Fast Track Court, Udham Singh Nagar in Sessions Trial Nos. 210/02, 211/02, 212/02, 215/02 and 216/02. Criminal Appeal No. 367/03 is against the conviction and sentence of the accused under Sections 302/394/411 IPC, Criminal Appeal No. 337/03 is against the conviction and sentence of the accused under Section 25/27 of the Arms Act, Criminal Appeal No. 341/03 is against the conviction and sentence of the accused under Section 25 of the Arms Act and Criminal Appeal No. 338/03 is against the conviction and sentence of the accused under Section 4/25 of the Arms Act. For the sake of convenience, the leading case in the present matter, the fact of which would be referred in the preset judgment purely for the sake of convenience is Criminal Appeal No. 367 of the 2003. 2. The brief fact of the case, as per the story of the prosecution, in its First Information Report (hereinafter referred to as FIR) is that an FIR was lodged on 4.4.2002 at 6.15 AM at Police Station Rudrapur by one “Banshidhar” stating that he has a firm by the name of M/s Jai Gurudev Industries on by-pass Kicchha Road, Rudrapur (District Udham Singh Nagar). In the night of 3/4.4.2002 when his father Sri Jai Chandra son of Hakim Chandra was in the factory, some unknown persons entered the premises of the factory and after cutting open the almirah took away the valuables and cash from the almirah and killed his father by strangulating him with a fan belt. He (the informant) could know about the incident only in the morning when he reached the factory. The FIR further states that the details of the valuables, cash and the documents would be given later. He further informs that the dead body of his father is lying in the factory premises. The FIR ends by indicating that his father was having some dispute regarding property with some persons. No one though has been named in the FIR. Subsequently, at the time of the inquest, which commenced soon thereafter, another hand written note was handed over to the police by the complainant (PW1 who is the son of the deceased). The FIR ends by indicating that his father was having some dispute regarding property with some persons. No one though has been named in the FIR. Subsequently, at the time of the inquest, which commenced soon thereafter, another hand written note was handed over to the police by the complainant (PW1 who is the son of the deceased). In that note, it refers to the earlier FIR, which was lodged by him. He, however, adds that after lodging of the FIR when he returned to his factory he found that the Double Barrel Gun which has Licence No. 2029-10/Rudrapur and gun number 52704 was missing along with 16 live cartridges. He further states that the cash worth Rs. 1,07,000/- and three notes of Rs. 100/- denomination in Nepali currency, the numbers of which were also given by him as “aa/45-767909, aa/33-921089 and aa/25-079297” were also missing. The valuables which were missing were one gold ring of one “tola” and certain vouchers and a diary. 3. There is, however, a second FIR relating to the incident, which was lodged by the police on 5.4.2002. While they were investigating the matter, they found four persons sitting at a “pulia”, and one of them fired a shot at the police party. The police was successful in apprehending at least two out of four persons. The remaining two escaped from the spot. The two persons who were caught by the police in this incident were Yassin @ Munna @ Nanhe and Mohd. Yusuf @ Guddu. The remaining two persons, according to the police, surrendered on 18.4.2002 who were Waseem Raja and Guddu @ Salam. Out of these four persons mentioned above, who were arrested on 5.4.2002 and 18.4.2002 respectively, Yassin @ Munna @ Nanhe and Guddu @ Salam were the employees in the factory of the deceased Jai Chandra. It was also revealed in the investigation that these two persons had come to the factory on 3.4.2002. After the days work they had promised that they would return the next day as usual but failed to turn up. The story of the prosecution further states that these two employees of the deceased namely Yassin @ Munna @ Nanhe and Guddu @ Salam planned the robbery along with two of their other accomplice namely Mohd. Yusuf and Waseem Raja, the other two appellants before this Court. The story of the prosecution further states that these two employees of the deceased namely Yassin @ Munna @ Nanhe and Guddu @ Salam planned the robbery along with two of their other accomplice namely Mohd. Yusuf and Waseem Raja, the other two appellants before this Court. Consequently, the police filed a charge-sheet against all the accused persons under Sections 302/394/411 IPC and 25/27 of the Arms Act. The matter was committed for sessions trial on 25.7.2002 and later the learned Sessions Judge framed charges against all the accused persons under Sections 302/394/411 IPC. Learned Sessions Judge also framed charged under Section 25/27 of the Arms Act against accused Yassin @ Munna @ Nanhe and Mohd. Yusuf @ Guddu. 4. The prosecution in support of its case presented as many as eight witnesses. 5. PW1 Banshidhar was the complainant and the son of the deceased who deposed before the court in his examination-in-chief that all the four accused namely Yassin @ Munna @ Nanhe, Mohd Yusuf @ Guddu, Waseem Raja and Guddu @ Salam are known to him and his firm Jai Guru Dev Industries which is situated near Kicchha by-pass, at Rudrapur. Two of the accused Yassin @ Munna @ Nanhe and Guddu are employees in this firm. The remaining two are also known to him since they frequently came to the factory. The factory was being run by him and his father, where most of the business deals regarding money were being looked after by him and the remaining work was done by his father. His father used to sleep in the factory premises during night, while he used to return to his village. This was their normal routine. On the fateful day of 3.4.2002, the two employees Yassin @ Munna @ Nanhe and Guddu informed him while leaving the factory premises at about 5 PM that they would return the next morning. The incident was of intervening night of 3/4.4.2002 when his father was sleeping in the factory, and had his licenced Double Barrel Gun in the factory. When he reached the factory at 5 AM the next morning he found the small outer gate of the factory open and the door of the factory i.e. door of the room in which his father used to sleep also open. His father was lying dead on a couch with a fan belt tied to his neck. When he reached the factory at 5 AM the next morning he found the small outer gate of the factory open and the door of the factory i.e. door of the room in which his father used to sleep also open. His father was lying dead on a couch with a fan belt tied to his neck. In the same room, an iron almirah was also found cut open and most of the articles in the almirah and room were scattered. He immediately reported the matter to the police by lodging an FIR and subsequently returned to the room to locate the missing articles, the details of which were subsequently given by him to the police at about 10.00 AM, at the time of the preparation of inquest report by the police. He specifically mentioned in his cross-examination that two of the accused namely Yassin @ Munna @ Nanhe and Guddu had come for work on 3.4.2002 and in the evening while going back they had informed that they will be coming back for the work the next morning. They, however, never returned. About not mentioning the details in the FIR itself, this witness explains that while lodging the FIR he was totally shocked, disturbed and scared and therefore he only mentioned the bare necessary details. Other details he could give only later. At this juncture, we must also note that there is no mention of the note, which according to the police was given by a hand-written note to the police at the time of inquest, in which the details of the articles and the cash including the number of three Nepali currency notes were given. In the General Diary though there is no mention of this second report. 6. PW2 Sohan Lal is a witness to the recovery made by the police on 5.4.2002. This witness is known to the deceased and his family. In his cross-examination he states that apart from the cash which was recovered there was also recovery of one Nepali currency note of ‘5 denomination. Interestingly, the police in its recovery memo dated 5.4.2002 notes that the recovery has been made, inter alia, of Rs.100 Nepali currency note bearing no. “aa/45-767909”. Apart from this fact, the recovery itself has been made from an open agricultural field though near a tube well, casts doubt on the veracity of this recovery. 7. Interestingly, the police in its recovery memo dated 5.4.2002 notes that the recovery has been made, inter alia, of Rs.100 Nepali currency note bearing no. “aa/45-767909”. Apart from this fact, the recovery itself has been made from an open agricultural field though near a tube well, casts doubt on the veracity of this recovery. 7. PW3 Harish Chandra is also a son of the deceased who has repeated the story as narrated by PW1 Banshidhar, his brother. He is also a witness to the recovery made on 18.4.2002 from the two remaining accused who had surrendered before the police on 18.4.2002 and then taken in the police custody. He is a witness of recovery of the two Nepali currency notes of Rs. 100/- denomination each which were recovered from the agricultural field (adjoining to the field in which recovery has been made), from the other two accused Waseem Raja and Guddu @ Salam who had surrendered on 18.4.2002. Again the recovery has been made in an open area, after 14 days of the alleged incident when “nepali” currency notes bearing particular numbers have been recovered. 8. PW4 is Sub-Inspector Mohd Hanif Khan, who had arrested the two accused namely Yassin @ Munna @ Nanhe and Guddu on 5.4.2002 and he admits that he had given a beating to the two accused and only thereafter had they confessed their crime and on their pointing out, the currency notes and Double Barrel Gun were also recovered. 9. PW7 Sub-Inspector Brijesh Kumar Tyagi is the investigating officer of the crime who had taken the accused to the agricultural field on 18.4.2002 where on their pointing the second recovery of the two Nepali currency notes was made. 10. As we have noticed above, this is entirely a case based on circumstantial evidence, and there is no eye-witness to the crime. The recovery in the present case therefore has a great significance and much depends upon the quality of this recovery and the veracity of the claim of the prosecution on this recovery. The story as per the prosecution, is that on 5.4.2002 while Sub-Inspector Mohd. Haneef Khan along with other police personnels were on duty, they were attacked by one of the four accused by “Tamancha*”. They were successful in apprehending two of the four persons. The remaining two accused escaped. The story as per the prosecution, is that on 5.4.2002 while Sub-Inspector Mohd. Haneef Khan along with other police personnels were on duty, they were attacked by one of the four accused by “Tamancha*”. They were successful in apprehending two of the four persons. The remaining two accused escaped. According to the police, the two accused who had escaped subsequently surrendered on 18.4.2002, which are Waseem Raja and Guddu @ Salam. 11. Learned counsel for the appellant Sri Lokendra Dobhal has questioned the entire story of the prosecution particularly the one pertaining to 5.4.2002 and the manner in which the recovery was alleged to have been made from the accused. Moreover, the most important piece of evidence in this entire crime is a fan belt with which it is alleged that the accused had committed murder by strangulating the deceased on that fateful night of 3.4.2002. No effort was made by the prosecution to take the finger prints of all the four accused or to collect the finger prints from the scene of crime, and more particularly from the weapon used in the alleged crime i.e. the fan belt and to match them with the finger prints of the four accused. Admittedly, finger prints were neither collected nor sent for forensic examination. This was a big loophole in the entire prosecution, which has ultimately proved fatal for the case of the prosecution. In support of the defence, the counsel for the appellants has argued that almost in a similar circumstances when the prosecution had failed to send the blood stained material (which could link the accused to the crime) for chemical examination, a reasonable doubt was raised regarding the genuineness of the case of the prosecution. The case cited by the learned counsel is of the Hon’ble Apex Court in State of U.P. Vs. Arun Kumar Gupta; 2003 SCC Cri. 481. 12. Another argument of the appellants is that no specific questions were asked from them under Section 313 Cr.P.C. benefit of which is liable to be given to them. However, the counsel for the appellant did not press this argument further when he was asked to specify which question has not been asked from the accused, which came in evidence against them and has also been read against them by the trial court. No specific reply on this aspect was given by the counsel for the appellants. 13. However, the counsel for the appellant did not press this argument further when he was asked to specify which question has not been asked from the accused, which came in evidence against them and has also been read against them by the trial court. No specific reply on this aspect was given by the counsel for the appellants. 13. One of the principal contentions of the Deputy Advocate General Mr. D. K. Sharma is that prosecution has been able to prove its case beyond any reasonable doubt and though it is a case circumstantial evidence the chain of evidence is complete against the accused and therefore they have rightly been convicted and sentenced. The counsel has further argued that accused Yassin @ Munna @ Nanhe and Guddu were the employees of the deceased and were present in the factory on the fateful day till evening when they promised to come back the next morning and failed to turn up. In the morning though all the employees were present and till afternoon the entire town (Rudrapur) became aware of the ghastly murder in the factory premises, yet these two accused namely Yassin @ Munna @ Nanhe and Guddu failed to turn up in factory premises and therefore there is a reasonable doubt against them and therefore prosecution has rightly proceeded on the lead which became conclusive without any shadow of doubt during the investigation done by the prosecution. 14. The second point argued by the State Counsel is that though a doubt may be created in the manner in which the second recovery on 18.4.2002 was made but there can be no doubt either in the procedure or in the actual recovery done by the police earlier on 5.4.2002. The place from where the cash and the licenced gun of the deceased were recovered was not an open place as alleged by the defence but it was an agricultural field near a tube well, hence a suitable place where the goods could be hidden. Moreover, the assailants were well aware of the locality and therefore they had hidden the stolen goods at that place. 15. Both these contentions of the State Counsel are liable to be rejected on the sole ground that one cannot convict a person merely on the basis of doubt, more so in a case of circumstantial evidence. Moreover, the assailants were well aware of the locality and therefore they had hidden the stolen goods at that place. 15. Both these contentions of the State Counsel are liable to be rejected on the sole ground that one cannot convict a person merely on the basis of doubt, more so in a case of circumstantial evidence. The prosecution must have cogent and conclusive evidence in order to convict an accused. The prosecution has failed to provide such evidence, which could have led to a conviction of the accused. Moreover, regarding the recovery the less said the better. Undoubtedly it is from an open place. The entire story of the prosecution particularly about the Nepali currency notes being recovered on 5.4.2002 as well as 18.4.2002 at two different places on pointing out of two different sets of accused castes great doubt on the entire story of the prosecution and the manner of the recovery. It is difficult to believe that one would keep the number of currency notes noted in a separate diary as it has happened with the “nepali currency notes”. Secondly assuming for the sake of argument that these numbers were recorded yet it could only have been recorded in the diary which itself was “missing” and which was never recovered. How then the number of these notes known to the prosecution! Thirdly the recovery of both the cash and the gun as well as the nepali currency notes are admittedly from two different agricultural fields at two different places, which are open areas and it again would cast a doubt on the recovery and would not be read as an evidence under Section 27 of the Evidence Act against the accused. 16. Lastly, the failure of the prosecution to collect finger prints and other forensic material from the scene of the crime and tally it with the accused has also ultimately become fatal for the prosecution. In short the chain of evidence which is so essential in a case of circumstantial evidence is clearly missing. Consequently it can never result in conviction and the trial court has therefore committed a most palpable error in convicting the accused on the available evidence. 17. Hence, we are of a firm belief that the prosecution has failed to prove its case beyond reasonable doubt in this case, which rests on circumstantial evidence. All the appeals therefore succeed. Consequently it can never result in conviction and the trial court has therefore committed a most palpable error in convicting the accused on the available evidence. 17. Hence, we are of a firm belief that the prosecution has failed to prove its case beyond reasonable doubt in this case, which rests on circumstantial evidence. All the appeals therefore succeed. The judgment and order of the trial court dated 7.11.2003 is set aside. All the accused are on bail. They need not surrender. 18. Lower court record be sent back along with a copy of this judgment. 19. Having decided the appeals as above, we are of the view that certain directions need to be given here to the Registrar General of this Court, the Principal Secretary (Home), Uttarakhand, the Director General of Police, Uttarakhand and Director General of Police (Prosecution), Uttarakhand. These directions are being made to the State Administration and to the Police Department to bring changes in their method of investigation, as we take a judicial notice of the fact and find that as in the present case so in many others the police investigation in Uttarakhand leaves much to be desired. There is particularly no application of modern forensic sciences in police investigation. To take a small but noticeable example, in the present case, there was no effort on the part of the investigation team, to collect even the finger prints from the scene of the crime! We have been informed at the Bar by the learned Deputy Advocate General that there is no modern well equipped forensic laboratory in Uttarakhand! It is a high time that we have one and therefore we direct the Government through its Principal Secretary (Home) and its Director General of Police, that if they have not already moved in this direction, they must establish at least one such modern forensic laboratory in Uttarakhand as expeditiously as possible. Secondly, officers must be trained in basic forensic skills and investigations and from hereinafter it should be made a part of the investigation particularly in major crimes such as rape, dacoity, murder & kidnapping. 20. The second direction to the above authorities of the State is that the post-mortem reports, which are received in the Court and which have an important bearing in the matter, are most of the time not legible. The reports are prepared in an archaic format. 20. The second direction to the above authorities of the State is that the post-mortem reports, which are received in the Court and which have an important bearing in the matter, are most of the time not legible. The reports are prepared in an archaic format. Moreover, the handwriting of the doctor most of the time is not legible. We therefore direct that the Principal Secretary, Medical and Health, Uttarakhand along with Director General, Health shall immediately make amendments here as well and from hereinafter all the post-mortem reports must be prepared in a computerized format so that they are legible when they are placed before a Court of law. The Registrar General of this Court is hereby directed to inform the Principal Secretary (Home), Uttarakhand, Director General of Police, Uttarakhand as well as Director General, Medical & Health, Uttarakhand so that these directions be complied forthwith. 21. We have noticed another aspect which is that the statements which are recorded of the witnesses during trial which include their examination-in-chief as well as cross examination are extremely illegible. We have been informed that our courts are not well quipped at present. However, this aspect too needs to be corrected and needs immediate attentions at the highest level. We therefore request that this matter be placed before the Hon’ble Chief Justice for his kind directions in the matter so that the matter be discussed and a solution be brought through appropriate directions on the administrative side.