JUDGMENT A.K. Shrivastava, J. 1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Reference No. 3/2012 sent by learned First Additional Sessions Judge, Balaghat (M.P.) under Section 366, Cr.PC. for confirmation of the death sentence awarded to appellants, namely, Vivek Bithle alias Bittu and Sunil Bithle. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellants against their judgment of conviction and order of sentence dated 5-12-2012 passed by learned First Additional Sessions Judge, Balaghat in Sessions Trial No. 44/2005 whereby the appellants have been convicted and sentenced as under:-- 2. Indeed, four persons were arrayed as accused persons, they are appellants Vivek Bithle alias Bittu and Sunil Bithle. The other two accused persons Sachin Samargade and Ramanlal Bithle were also put for trial along with the appellants but the charges were not found proved against them and they were acquitted by learned Trial Court. No State appeal has been preferred against their acquittal, hence, their judgment of acquittal has become final. 3. In brief, the case of the prosecution is that the Assistant Sub-Inspector Shivnaresh Uapadhyay of Police Kotwali, Balaghat on 6-10-2004 registered a Merg at 0' number and on its basis on the same day at near about 9.10 a.m. in the Police Station the Merg intimation was registered to the effect that he is serving in the Police Kotwali, Balaghat as Assistant Sub-Inspector. During the course of inquiry of Rojnamcha No. 367, dated 6-10-2004 at the spot, Dehati Merg Intimation at 0/04 under Section 174, Cr.PC. upon the report of Ayodhya Prasad was registered which was in regard to the death of Mukesh Namdeo, Smt. Archana, Ku. Asha and Shivam. According to the said Dehati Nalishi, his son first deceased Mukesh along with his family had gone somewhere without informing anybody. Ayodhya Prasad, on receiving such telephonic message at Jabalpur where he resides, went to Balaghat on 6-10-2004 and when he did not find the first deceased and his family members in his house which was locked, it was noticed by him that on the rear side of his house one pit was dug, which has been recently refilled. This created certain doubts in his mind as a result of which he went to the Police Kotwali, Balaghat to lodge a report. This created certain doubts in his mind as a result of which he went to the Police Kotwali, Balaghat to lodge a report. The police personnel along with the Tehsildar arrived at the spot and dug a pit in which the dead bodies of four deceased persons, namely, Mukesh Namdeo, Smt. Archna, Ku. Asha and Shivam whose hands were tied from the back were found. On this basis, after registering the necessary merg report on 6-10-2004 at 9.20 p.m. First Information Report was registered. During the investigation, the dead bodies of the deceased persons were identified by Ayodhya Prasad, who is the father of first deceased, father-in-law of second deceased and grandfather of third and fourth deceased. The spot map was also prepared. The dead bodies of the deceased persons were sent for post-mortem. One spade upon which earth was sticking and other articles were seized. 4. After the accused persons were arrested, at their instance belonging to first deceased Mukesh were seized. The seized articles were sent for chemical examination. After the investigation was over, a charge-sheet was submitted in the Committal Court, which committed the case to the Court of Sessions and from where it was received by the Trial Court for trial. 5. The learned Trial Judge on the basis of the allegations made in the charge-sheet framed the charges for the offence punishable under Sections 449, 302/34 (4 counts), 201/34 (4 counts), 404/34 and 394/397, IPC against the accused persons, which they denied and requested for the trial. 6. In order to bring home the charges the prosecution examined as many as 66 witnesses and placed Exhs. P-1 to P-115 the documents on record. The defence of the accused persons including the appellants is of false and maladroit implication and the same defence they set forth in their statements recorded under Section 313, Cr.PC. However, in order to prove their defence they did not choose to examine any witness. 7. The learned Trial Judge after considering the evidence of the prosecution vis-à-vis to the defence arrived at a conclusion that the charges are not proved against the third and fourth accused persons, namely, Sachin Samargade and Ramanlal Bithle and eventually acquitted them from all the charges. The State has not preferred any appeal against their acquittal. 7. The learned Trial Judge after considering the evidence of the prosecution vis-à-vis to the defence arrived at a conclusion that the charges are not proved against the third and fourth accused persons, namely, Sachin Samargade and Ramanlal Bithle and eventually acquitted them from all the charges. The State has not preferred any appeal against their acquittal. According to the learned Trial Court, the appellants have committed the offence, which we have mentioned in Para 2 of this judgment and thus, directed them to suffer different type of sentences including the severest punishment of death. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. The learned Trial Judge has also referred the connected criminal reference to this Court under Section 366, Cr.PC. for confirmation of the death sentence awarded by him to the appellants. 8. Shri S.C. Datt, learned Senior Counsel for the appellants submitted that as per the case of the prosecution the incident occurred on 30-9-2004 and the dead bodies were exhumed from the rear side of the house of the deceased persons on 6-10-2004. Learned Senior Counsel further submits that there is no direct evidence against the accused persons and the prosecution has based its case purely on circumstantial evidence. According to learned Senior Counsel, when the case rests upon the circumstantial evidence, such evidence must satisfy the test that the circumstances from which an inference of guilt is sought to be drawn, must be firmly established and those circumstances should be of a definite tendency unerringly pointing out the guilt towards the accused and their cumulative effect should form a complete chain and further there is no escape to arrive at a conclusion that only accused has committed the crime and none else. In this regard, learned Senior Counsel has placed heavy reliance upon certain decisions of the Supreme Court, they are:--Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 , Palvinder Kaur v. The State of Punjab, AIR 1952 SC 354 , Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , K.V. Chacko alias Kunju v. State of Kerala, (2001) 9 SCC 277 and Ashish Batham v. State of M.P., (2002) 7 SCC 317 . 9. 9. According to learned Senior Counsel, in the present case, the cumulative effect of the circumstances and the evidence which has been collected by the Investigating Agency is not forming a complete chain unerringly pointing out the guilt towards the appellants leaving behind no hypothesis. According to him, they have been convicted and have been directed to serve the severest sentence of death on the basis of conjectures and surmises. It has been then propounded by him that if the crime is very heinous, more strict degree of proof is required and the accused cannot be convicted holding him to have committed the heinous crime with the weak evidence. It has also been submitted by him that broadly speaking the prosecution is basing its case on 15 circumstances, which are also summarised in Para 33 of the impugned judgment but according to the learned Senior Counsel, those circumstances are not clinching and even if its cumulative effect is taken, those circumstances do not form a complete chain unerringly pointing out the guilt towards the appellants leaving behind no hypothesis. 10. For appellant Sunil Bithle, it has been contended by learned Senior Counsel that he was taken into custody on 21-11-2004 by Investigating Officer, Arvind Jain (P.W. 64) and his memorandum statement under Section 27of the Evidence Act is Exh. P-8. On its basis, the recovery of Camera in a black coloured cover was made upon which 'ASHICON' was embossed and a mobile cellphone on the screen of which reliance was reflecting and a charger of LG Company were also seized from a house situated in Block Sangam Vihar at New Delhi in presence of the witnesses Amarnath Singh Chouhan (P.W. 57) and one Constable Ashok Kumar (not examined). These articles were put for test identification on 17-12-2004, vide Exhs. P-33-A and 33-B at Rest House, Balaghat at 4 p.m. These articles were identified by Ayodhya Prasad (father of the first deceased) saying that they are of his son Mukesh. Learned Counsel submits that Ayodhya Prasad (P.W. 29) was examined on 20-2-2006 and after cross-examination and reexamination he was discharged, but, after the case was closed on 23-11-2011 for pronouncement of the judgment, on 8-12-2011 the learned Judge was transferred. Eventually, on 8-12-2011, case was adjourned-and on 20-12-2011 an application under Section 311, Cr.PC. Learned Counsel submits that Ayodhya Prasad (P.W. 29) was examined on 20-2-2006 and after cross-examination and reexamination he was discharged, but, after the case was closed on 23-11-2011 for pronouncement of the judgment, on 8-12-2011 the learned Judge was transferred. Eventually, on 8-12-2011, case was adjourned-and on 20-12-2011 an application under Section 311, Cr.PC. was submitted before the leaned Judge, who assumed the charge of that Court, which was ultimately allowed on 15-5-2012. In this manner, Ayodhya Prasad (P.W. 29) was re-examined on 13-7-2012. In his later statement, the factum of the evidence of identification of camera has been adduced. Learned Senior Counsel submits that only camera was put for test identification and not the cellphone. In this regard, he has invited our attention to identification memos (Exhs. P-33-A and 33-B). It has also been propounded by learned Senior Counsel that these articles were not produced in the Court and were not got identified by Ayodhya Prasad (P.W. 29), which could be a substantive piece of evidence. According to learned Senior Counsel, looking to the evidence of the Investigating Officer as well as the witness of memorandum of the discovery Amarnath Singh Chouhan (P.W. 57) the recovery part is not at all proved. In this regard, learned Senior Counsel has invited our attention to certain decisions they are Pulukuri Kottaya and others v. Emperor, AIR (34) 1947 PC 67, Prabhoo v. State of Uttar Pradesh, AIR 1963 SC 1113 and Trimbak v. State of M.P., AIR 1954 SC 39 . 11. By inviting our attention to the testimony of Sheikh Safiq (P.W. 8), it has been submitted that he is the witness of memorandum statement (Exh. P-8) of the appellant-Sunil. His memorandum statement was recorded in the afternoon of 21-11-2004 at 1.30 p.m., in the Police Station, Katangi but the Investigating Officer Arvind Jain (P.W. 64) has deposed that in the night of 21-11-2004 at 1.30 hours the memorandum statement was recorded. Learned Senior Counsel submits that looking to the contradictions in regard to the time which have arrived in deposition of these two witnesses, with certainty it cannot be said that at what time and on which dale the memorandum was written on the basis of which they had gone to Delhi to recover the incriminating articles. Learned Senior Counsel submits that other witness of memorandum statement Devendra Singh has not been examined. 12. Learned Senior Counsel submits that other witness of memorandum statement Devendra Singh has not been examined. 12. By inviting our attention to the seizure memo (Exh. P-85), which was prepared on 22-11-2004 at 8.45 hours and which has been proved by Amarnath Singh Chouhan (P.W. 57) a resident of New Delhi it has been contended by learned Senior Counsel that the recovery of articles is not at all proved. The other witness Ashok Kumar to the said recovery memo was no examined. Learned Senior Counsel submits that from the evidence of Amarnath Singh it is not proved that the house was of appellant Sunil Bithle or he was a tenant in it or with whose permission he was residing in the said house at Delhi, this has also not been proved. Learned Senior Counsel submits that no Rojnamcha in that regard has been produced and in this regard, our attention has been drawn to the evidence of Investigating Officer, Arvind Jain (P.W. 64), Paras 47 and 48. Learned Senior Counsel by inviting our attention to the testimony of Akhil Vaidya (P.W. 37) has submitted that as per prosecution's own case the cellphone was purchased from his shop by the first deceased Mukesh, but, this fact has not been proved and for the reasons best known to the prosecution the cellphone was not put for test identification. 13. In regard to appellant-Vivek Bithle, learned Senior Counsel submits that the memorandum statement under Section 27 of the Evidence Act of this appellant is Exh. P-4 and the witnesses are Kailash Dhaneshwar (P.W. 36) and Rajesh Dubey (P.W. 7). By inviting our attention to seizure memo (Exh. P-5), it has been contended that on its basis the articles which were seized have no relevancy to connect the appellant with the crime because those articles were not put for identification and they were also not produced in the Court for dock identification so as to prove that they were of the deceased. Learned Counsel submits that they were found in the jungle at open place nearby a tree and therefore, with certainty it cannot be said that they are the belonging of the deceased persons. 14. Learned Counsel submits that they were found in the jungle at open place nearby a tree and therefore, with certainty it cannot be said that they are the belonging of the deceased persons. 14. An alternative submission has also been put forth by him that even if it is presumed that camera and cellphone of deceased Mukesh were recovered at the instance of appellant-Sunil Bithle from a house at New Delhi, the appellants cannot be convicted for committing the murder and at the most they can be convicted under Section 411, IPC. In this regard, our attention has been drawn upon four decisions of Apex Court, they are:-- Sanwat Khan and another v. State of Rajasthan, AIR 1956 SC 54 , Paras 2, 5, 6 and 7 and Hukam Singh v. The State of Rajasthan, AIR 1977 SC 1063 , Paras 4, 5 and 7 and Nagappa Dondiba Kalal v. State of Karnataka, AIR 1980 SC 1753 , Paras 3 and 4 and Joga Gola v. State of Gujarat, AIR 1982 SC 1227 . 15. Learned Counsel further submits that in the present case, the motive which has been unsuccessfully tried to be demonstrated by the prosecution is that the first deceased Mukesh was not returning back the margin money of Rs.1,50,000, which he took from appellant-Vivek Bithle for establishing a small factory to manufacture the Ayurvedic Medicines. In this regard, learned Counsel has invited our attention to the evidence of Shobhendra Daharwal (P.W. 38) but according to him, from his testimony also the motive is not proved. 16. Learned Senior Counsel further submits that the prosecution has unsuccessfully tried to connect appellant-Vivek Bithle with the alleged crime because according to the prosecution he was having some injury in his hand and at the time of commission of the offence his blood, which was oozing from his wound stained certain articles of the house of deceased persons the description whereof has been mentioned in Exh. P-44. The blood stains were also found on the floor of the Chhapri (Verandah) of the house of the deceased. The blood group 'B+' was found by Forensic Science expert on these articles and blood group of accused Vivek Bithle is also of the same group. The sample of blood of appellant-Vivek Bithle was also sent for DNA test but by inviting our attention to the arrest memo (Exh. The blood group 'B+' was found by Forensic Science expert on these articles and blood group of accused Vivek Bithle is also of the same group. The sample of blood of appellant-Vivek Bithle was also sent for DNA test but by inviting our attention to the arrest memo (Exh. P-6) it has been submitted that when this accused was arrested he was not having any injury upon his body and therefore, the said evidence is created by the Investigating Agency. Learned Senior Counsel submits that the blood samples of accused-Vivek Bithle were taken twice by the Investigating Officer, Arvind Jain (P.W. 64) and in that regard, our attention has been drawn to Paras 67 and 68 of his testimony in which he has deposed that on 23-11-2004 for DNA test the blood sample was obtained and second time on 5-1-2005, it was again collected for the same purpose. Learned Counsel submits that as per the testimony of Investigating Officer the sample of blood, which was taken on 23-11-2004 for DNA test was to be sent to Hyderabad Laboratory, but, before taking the said sample no permission from the concerning Magistrate was obtained and not only this, the report of Hyderabad Laboratory has also not been submitted in the Court and was also not proved. 17. Learned Senior Counsel submits that even if DNA test which was performed upon the second sample of blood of appellant-Vivek Bithle indicates that the blood of appellant-Vivek Bithle was found upon the articles, which were seized vide Exh. P-44 from the house of deceased persons, but it is not a conclusive proof. In that regard our attention has been drawn to the decision of Gujarat High Court in Premjibhai Bachubhai Khasiya v. State of Gujarat and another, 2009 Cri. L.J. 2888. 18. It has also been put forth by learned Senior Counsel that Dr. D.K. Satpati (P.W. 46), who is serving on the post of Director, Medico Legal Institution at Bhopal has deposed that Superintendent of Police, Balaghat referred a letter to him to give his opinion as an expert. Along with the letter, two CDs, seven coloured photographs, spot map, seizure memo and the case diary statement of some witnesses were sent to him. The viscera and certain parts of the body of the deceased persons were also sent in the jars. Along with the letter, two CDs, seven coloured photographs, spot map, seizure memo and the case diary statement of some witnesses were sent to him. The viscera and certain parts of the body of the deceased persons were also sent in the jars. The doctor on the basis of the pieces of the dead body of the deceased of thyroid, opined that the deceased persons were strangulated and death was homicidal. It has also been put forth by him that in the FSI report of Sagar (Exh. P-106), the presence of organo-phosphorous was found in the viscera of second, third and fourth deceased persons, namely. Archna, Ashi and Shivam respectively, which is a poisonous substance, but, no such poisonous substance has been found in the viscera of first deceased Mukesh. Learned Senior Counsel submits that there is no finding of learned Trial Court that the death of the deceased persons was homicidal and thus, how they have died is still a mystery and merely on the basis of the opinion of the expert. Dr. Satpati (P.W. 46) with certainty it cannot be said that the death is homicidal because he has not seen the dead bodies and was not present at the time of the post-mortem. 19. On the aforesaid premised submissions, it has been submitted that the circumstances, which have been collected by the prosecution their cumulative effect does not form a complete chain unerringly pointing out the guilt towards the appellants and therefore, the conviction cannot be based on the basis of conjectures and surmises and hence, it has been prayed that this appeal be allowed by setting aside the impugned judgment of conviction and order of sentence and appellants be acquitted from all the charges. An alternative submission has also been put forth by him that if this Court comes to the conclusion that the appellants have committed the offence, since for continuously eight years the trial was prolonged, the death sentence should not have been awarded. 20. An alternative submission has also been put forth by him that if this Court comes to the conclusion that the appellants have committed the offence, since for continuously eight years the trial was prolonged, the death sentence should not have been awarded. 20. On the other hand, Shri S.D. Khan, learned Public Prosecutor argued in support of the impugned judgment and submitted that the dead bodies were buried on the rear side of the house of first deceased Mukesh and labours were hired by the accused persons and in that regard, our attention has been drawn to the testimony of Anita Narang (P.W. 2) and the labours Himmat Singh (P.W. 1), Kharaglal (P.W. 43) and Ajablal (P.W. 44). Learned Public Prosecutor by inviting our attention to the evidence of Sashi Bai (P.W. 7) submitted that she is the domestic servant of the deceased persons and has deposed that the digging was made by the accused persons. Learned Counsel further submits that in the present case, the motive part is also proved which has been proved by Shobhendra (P.W. 38). It has also been put forth by him that on the basis of the memorandum statement of appellant, incriminating articles were seized and they were identified by Ayodhya Prasad (P.W. 29). All these circumstances indicate that the appellants are the only accused persons, who have committed this heinous offence. By placing reliance upon the decision of State of M.P. v. Sarveshwar Prasad, 1977 MPLJ 620, it has been contended that appellants are not claiming the articles (Camera and Cellphone) of their own and therefore, the charges are proved against them. 21. By inviting our attention to Para 33 of the impugned judgment it has been submitted by learned Public Prosecutor that the prosecution has demonstrated and proved 15 circumstances and if the cumulative effect of these circumstances is taken into consideration, a complete chain is formed unerringly proving the guilt of appellants and thus, it is emphatically proved that appellants have committed the crime. Learned Public Prosecutor submits that because deceased Mukesh was not returning the loan which he took from appellant Vivek Bithle, the appellants have not only killed the first deceased Mukesh, but also his wife (second deceased) and the children so that they may not give any evidence against them. Learned Public Prosecutor submits that because deceased Mukesh was not returning the loan which he took from appellant Vivek Bithle, the appellants have not only killed the first deceased Mukesh, but also his wife (second deceased) and the children so that they may not give any evidence against them. Hence, the case comes within the purview of the rarest of the rare case because the presence of the appellants in the society has become hazardous. In this regard, learned Public Prosecutor has placed heavy reliance on the Division Bench decision of this Court in Sarveshwar Prasad (supra). The learned Public Prosecutor submits that this appeal sans substance and the same be dismissed and by accepting the reference sent by learned Trial Court, the death sentence awarded be affirmed. 22. Having heard learned Counsel for the parties we are of the considered view that this appeal deserves to be allowed. 23. In the present case, there is no direct evidence to the incident and the prosecution has based its case upon the circumstantial evidence. It is well-settled in law that if the case rests upon the circumstantial evidence such evidence must satisfy the following tests, as held in K.V. Chacko alias Kunju v. State of Kerala, (2001) 9 SCC 277 :-- "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consisted with the guilt of the accused but should be inconsistent with his innocence." The same test has been enumerated in Sharad Birdhichand Sarda (supra) and Ashish Batham (supra). 24. The circumstantial evidence should not only be consisted with the guilt of the accused but should be inconsistent with his innocence." The same test has been enumerated in Sharad Birdhichand Sarda (supra) and Ashish Batham (supra). 24. According to us, if two views are possible on the same set of evidence, one pointing out to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, and this principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. We may further add and may go to the extent that the guilt of the accused has to be adjudged not by the fact that a vast number of people believe the accused to be guilty, but, whether his guilt has been established by the evidence brought on record, this is to be determined. We do not have any other yardstick or material to adjudge the guilt of the person arraigned as accused except the oral and documentary evidence placed on the record. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, however, is more apparent than real. True, the wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. On this point, we may profitably rely upon the decision of the Supreme Court in Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773 , and we think it apposite to quote Paras 25 and 26 of the said decision, which read, thus:-- "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh, Cri. Appeal No. 7 of 1972, decided on 6-8-1973 : (reported in AIR 1973 SC 2407 ) a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures. 26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. 26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The Courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the Courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real." At this juncture, we would like to quote the observations made on Page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, which reads thus:-- "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved, the public interest and the interest of the accused alike require an acquittal." (Emphasis supplied) 25. It is being said that every legal maxim is either a platitude or a half truth and Sir Carleton Allen ably demonstrates the way in which the present one may lead to error. He points out that the number used in stating ratio is not without importance:-- "'I dare say', he says, 'some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. He points out that the number used in stating ratio is not without importance:-- "'I dare say', he says, 'some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has spoken down and society is in a state of chaos." (Passage is quoted from Page 157 of the "The Proof of Guilt" by Glanville Williams, Second Edition.) Indeed, the aforesaid passage has also been relied by the Apex Court in Para 27 of its decision Kali Ram (supra) and we apt to quote Para 27 of the said decision which reads, thus:-- "27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expidation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring. As far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on Page 157 of 'The Proof of Guilt' by Glanville Williams. Second Edition....." The relevant passage has already been reproduced hereinabove. 26. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on Page 157 of 'The Proof of Guilt' by Glanville Williams. Second Edition....." The relevant passage has already been reproduced hereinabove. 26. The Supreme Court in Para 6 of its decision Ashish Batham (supra), by placing reliance upon the decision of Hanumant Govind (supra), has categorically held that while dealing with a case based on circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. Hence, the Court should be very cautious and should remember the warning addressed by Baron Alderson to the jury in R. V. Hodge, (1838) 2 Lewin 227 and we would like to quote the said warning, which reads thus:-- "The mind was apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be. to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete." 27. By keeping the aforesaid principles enumerated in the aforesaid various decisions of the Supreme Court in our mind we shall now examine the testimony of the witnesses in order to arrive at a conclusion as to whether the cumulative effect of the circumstances and the evidence so adduced forms a complete chain unerringly pointing out the guilt towards the appellants leaving behind no hypothesis and further that the conjectures and suspicion may not take place of strict proof as warned by Baron Alderson to the jury in R. v. Hodge (supra). At the same time, we should not be overpowered by the fact that a vast number of people believe that the appellants are guilty but we should be confined as to whether indeed they have committed the crime as held by the Apex Court in Kali Ram (supra), in which it has also been held that where two views are possible on the same set of evidence, the view which is favourable to the accused should be adopted and this principle has a special relevance in those cases, which are based upon circumstantial evidence. 28. Before adverting ourselves on the evidence of the witnesses and the documents, which are placed on record, we think it germane to go through the circumstances which, according to the Trial Court, are proved and are forming a complete chain unerringly pointing the guilt towards the appellants. Those circumstances are 15 in number and have been summarised in Para 33 of the impugned judgment and we would like to quote those circumstances, they are:-- (i) The first deceased Mukesh was carrying on the business of selling Ayurvedic medicine and first appellant Vivek Bithle was helping him to establish a small factory of Ayurvedic medicine of forest produce. (ii) For the aforesaid purpose first appellant Vivek Bithle often visited the house of first deceased Mukesh and the first deceased also used to visit his house. (iii) First appellant Vivek Bithle in order to establish small factory of Ayurvedic medicine financed a sum of Rs. 1,50,000/- to first deceased Mukesh which he did not return despite repeatedly it was demanded by the first appellant and thus he was little disturbed. (iv) From the house of acquitted co-accused Ramanlal Bithle at Nagpur, who is father of first appellant vide Exh. P-26, the key of the lock of the house of first deceased Mukesh was found in an iron ring and on the said key 'Pramod' was embossed. Some documents related to first appellant Vivek Bithle like photocopy of domicile certificate; quotations of Icon Equipment Pvt. Ltd., some papers related to agricultural produce of medicine like Ashwagandha; and one photocopy of magazine by the name of Banaupjinchi Laagvad. These articles were seized in the presence of Vishal Bithle, who is also one of the son of acquitted co-accused Ramanlal Bithle. These articles were seized in the presence of Vishal Bithle, who is also one of the son of acquitted co-accused Ramanlal Bithle. (v) The key, which was recovered from the house of Ramanlal Bithle at Nagpur was of the lock of the house in question in which the deceased persons were residing. (vi) In the FSL report of the curtains, cushion cover and upon the wall of the house of Mukesh blood stains of B+ group were found. (vii) At the relevant point of time on the right hand of the first appellant Vivek Bithle an injury was found, the dressing of which was done by Narendra Kumar Patle. The blood sample of first appellant Vivek Bithle was sent for DNA examination in which the presence of B+ group blood was found and no explanation has been given by the defence in respect of receiving the injury upon the hand of first appellant Vivek Bithle. (viii) From the shop of Dinesh Pashine, two spades and one wooden stick was purchased by appellant Vivek Bithle. Vide identification memo (Exh. P-32) said Dinesh Pashine identified first appellant Vivek Bithle. There is no explanation of first appellant Vivek Bithle that why he bought spades and Bainta (a wooden stick which is fixed in the spade); (ix) From the bathroom of the house of first deceased two spades upon which the earth was sticking were seized and the said earth was found to be of the same pit which was dug. (x) On the basis of discovery statement made by second appellant Sunil Bithle from his house at Delhi, the mobile phone, charger and camera of deceased Mukesh were seized. (xi) On the basis of the information given by second appellant Sunil Bithle the articles which were seized from his house they were found to be of first deceased Mukesh Namdeo and this fact has been proved from the evidence of Akhil Vaidya (P.W. 37) and Atul Kulsheshtra (P.W.63). (xii) After some days of the incident appellant Vivek Bithle vacated the house of Kalawati, which he took on rental basis. (xiii) On the basis of the information supplied by Vivek Bithle, in the jungle of Garrakothi nearby the pond the burnt pieces of Jari saree, clips of the suitcase, clips of the file, buttons of the suitcase, two burnt plastic pieces etc. were seized. (xiii) On the basis of the information supplied by Vivek Bithle, in the jungle of Garrakothi nearby the pond the burnt pieces of Jari saree, clips of the suitcase, clips of the file, buttons of the suitcase, two burnt plastic pieces etc. were seized. (xiv) The wallet and the camera of the first deceased Mukesh Namdeo were identified by his father Ayodhya Prasad. The camera of deceased Mukesh Namdeo was seized from the house of Sunil Bithle at Delhi. The wallet of Mukesh Namdeo was seized from the rear side of the house of Kalawati in which first appellant Vivek was residing as tenant. (xv) From the rear side of the house of Kalawati Patle where first appellant Vivek Bithle was residing as tenant, one blood stained handkerchief, bandage and rope were seized. 29. Before we deal with the aforesaid circumstances, which according to the learned Trial Court are proved, we would like to give our finding and decision on certain facts which are not highlighted in the aforesaid circumstances. In Para 8 of the impugned judgment it has been mentioned by the learned Trial Court that according to the FSL report in the viscera of deceased persons, presence of organ phosphorous was found. The learned Trial Court has only arrived this much that before their death, the deceased persons consumed the poisonous substance. However, there is absolutely no finding of learned Trial Court that on account of poison having been administered to the deceased persons they have died. According to us, unless there is a clear and categorical finding and that too based upon the evidence of the autopsy surgeon that the deceased persons have died on account of poison it is very difficult to hold that the appellants have committed the crime of culpable homicide amounting to murder. In detail we are assigning the reasons hereinafter. 30. Nowhere the Autopsy Surgeon Dr. Sanjay Dabargaon (P.W. 45) in his post-mortem report or when he appeared as witness in the Court as P.W. 45 has deposed that the death of the deceased persons was homicidal in nature. Indeed, the Autopsy Surgeon preserved the viscera for its examination in the Forensic Science Laboratory. In the FSL report, the presence of organo-phosphorous has been found in the body of the deceased persons, but there is no finding of learned Trial Court that on account of poison the deceased persons have died. Indeed, the Autopsy Surgeon preserved the viscera for its examination in the Forensic Science Laboratory. In the FSL report, the presence of organo-phosphorous has been found in the body of the deceased persons, but there is no finding of learned Trial Court that on account of poison the deceased persons have died. It is not the case of the prosecution that the dead bodies of the deceased persons were not found. Admittedly, the dead bodies, which were buried on the rear side of their house were exhumed. According to us, the learned Trial Court has rightly come to the conclusion in Para 8 of its decision that because the dead bodies were exhumed, therefore, their death was homicidal in nature. The Autopsy Surgeon, Dr. Sanjay Dabargaon (P.W. 45) conducted the post-mortem of all the dead bodies of the deceased persons. The post-mortem report of second deceased Archna is Exh. P-65 while that of Shivam, Mukesh Namdeo and Ku. Ashi are Exhs. P-66 to P-68 respectively. In all these post-mortem reports, the Autopsy Surgeon has declined to give any opinion in regard to the cause of death of the deceased persons, however, according to the Autopsy Surgeon the death has occurred between 4 to 7 days from the date of post-mortem, which is 7-10-2004. The Autopsy Surgeon did not find even single external injury upon the dead bodies nor found any internal injury on dissecting the dead bodies, however, the viscera of the dead bodies was collected and was sent to Forensic Science Laboratory for the chemical test. The report of expert of the FSL, Sagar is Exh. P-106 and in the said report the presence of organo-phosphorous, which i s a poisonous substance was found in the viscera of the bodies of all the deceased persons. 31. It has come in the testimony of father of first deceased Mukesh, Ayodhya Prasad (P.W. 29), Para 9 that the Investigating Agency in his presence brought a bottle of pesticide from the office of deceased Mukesh upon which label of 'Jallad' was pasted and kept the same on the dining table lying in the kitchen and from that place the seizure of that bottle (Exh. P-45) was shown which bears his signature. P-45) was shown which bears his signature. But, we fail to understand that why in order to create the evidence such a bottle was brought from the office of first deceased Mukesh and was kept upon the dining table of the kitchen and then it was seized. Admittedly, first deceased Mukesh was indulged in the business of Ayurvedic Medicines made by agriculture produce as per the prosecution's own case. That apart, according to Ayodhya Prasad (P.W. 29) in the same para one pesticide by the name of 'Baygon' was seized from the locked almirah of kitchen. Learned Public Prosecutor by inviting our attention to the evidence of certain witnesses has submitted that in the curd the poisonous substance was found which was administered to the deceased persons but learned Public Prosecutor failed to point out that when the curd was seized from the house of deceased persons and when it was sent to the Forensic Science Laboratory for chemical test and it was found to be poisonous and further as to whether the deceased persons have died on account of poison. 32. Learned Trial Judge held in Para 8 of the impugned judgment on the basis of report of FSL, Sagar in which it was opined by the expert that in the viscera of the deceased persons organo-phosphorous substance was found and therefore, it is proved that the poisonous substance was administered to these deceased persons. Articles R, S, U, V, X and Y are the jars in which organo-phosphorous was found by the FSL examiner. Needless to say that articles R and S are the jars containing viscera of deceased Archna while the articles U and V are the jars containing viscera of deceased Shivam, articles X and Y are the jars, which contain the viscera of deceased Ashi. Indeed, the articles 'O' and 'P' are the jars in which viscera of first deceased Mukesh was sent which was also containing the same poisonous substance. Hence, the presence of organo-phosphorous was found in the viscera of all the deceased persons. Even if for the sake of argument we accept the contention of learned Public Prosecutor that the deceased persons have died on account of the poisonous substance administered to them, the question would then arise that who had administered the poisonous substance in question to them. Even if for the sake of argument we accept the contention of learned Public Prosecutor that the deceased persons have died on account of the poisonous substance administered to them, the question would then arise that who had administered the poisonous substance in question to them. There is absolutely no evidence that the appellants had the poison in their possession and further they had opportunity to administer it to the deceased persons. According to us, in absence of any evidence in that regard, no finding can be arrived at that appellants have administered the poison to the deceased persons. In this regard, it will be fruitful to place reliance upon the Supreme Court decision in Ram Gopal v. State of Maharashtra, AIR 1972 SC 656 , wherein the Supreme Court has laid down the principles, if the murder is said to have been caused by administering the poison. They are:-- (i) there should be a motive to administer the poison; (ii) the deceased had died of the poison in question; (iii) the accused had poison in his possession; and (iv) he had opportunity to administer the poison to the deceased. According to us, if the aforesaid conditions are fulfilled then only the Court can infer that the appellants have administered the poison to the deceased persons resulting into their death. In the present case, there is absolutely no finding of learned Trial Court that on account of administering of poison the deceased persons had died. There is absolutely no evidence that appellants were having the possession of poison in question which was administered to the deceased persons and further they were having any occasion to administer the same to them. So far as the motive part is concerned, we will deal this point while discussing with the circumstance Nos. (i), (ii) and (iii) when we will discuss the testimony of Shobhendra(P.W. 38), who is the key witness examined by the prosecution to prove the circumstances of motive. 33. On going through the finding of learned Trial Court in Paras 7 to 9 we find that much heed has been paid by the learned Trial Court on the opinion (Exh. P-69) of Dr. 33. On going through the finding of learned Trial Court in Paras 7 to 9 we find that much heed has been paid by the learned Trial Court on the opinion (Exh. P-69) of Dr. Satpati and as well as on the basis of this evidence when he appeared in the Trial Court as P.W. 46, it has been held by the learned Trial Court in Para 9 of the impugned judgment that because upon the cartilage of thyroid and cartilage of ear of deceased persons the fractures were found, therefore, the death of the deceased persons was homicidal in nature. According to us, broadly on the basis of two major reasons the said opinion of Dr. Satpati (P.W. 46) cannot be accepted. Firstly, the cartilages of the thyroid and ear which were sent were so brittle and fragile, as has been said by the said doctor (P.W. 46) in his testimony that they were highly decomposed and calcified upto 70%, therefore, it can be inferred that while collecting the cartilages and keeping them into the jars, sent to Dr. Satpati (P.W. 46) the fractures might have occurred. The second important and major factor which cannot be marginalised and blinked away is that only on the basis of certain photographs and CDs, this doctor (P.W. 46) has opined that the death of the deceased persons is homicidal in nature. We are of the firm view that unless and until the expert doctor has examined the dead bodies, merely on the basis of certain photographs or the CDs of the post-mortem, opinion cannot be given with certainty that the homicidal death has occurred. In this regard, we may profitably place reliance upon three decisions of the Supreme Court, they are Mohan Singh v. State of Punjab, AIR 1975 SC 2161 and Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186 and Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 . 34. In Mafabhai Nagarbhai (supra), it has been held by the Apex Court that the doctor, who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death and unless there is something inherently defective the Court cannot substitute its opinion to that of doctor. According to us, the case in hand is rather on better footing. In the present case, Dr. According to us, the case in hand is rather on better footing. In the present case, Dr. Satpati (P.W. 46) was not present at the time when the post-mortem was conducted and therefore, his evidence cannot brush aside the cause of death which has been expressed by Dr. Sanjay (P.W. 45), who performed the post-mortem and opined that the cause of death is not known. In Para 7 of its decision Mohan Singh (supra), the Supreme Court held that the expert stated that he came to the conclusion that the injuries on the deceased persons were probably caused by one gun fire only. The Supreme Court has disbelieved such opinion of the doctor inter alia on one of the important reasons that if the doctor had not seen the injuries it would need superhuman ability to come to the conclusion on the subject by mere looking at the description of the injuries or even the photographs given to the doctors. The Supreme Court in Paras 34 and 35 of its decision Tanviben Panjakumar (supra), elucidating the principles laid down in Section 45 of the Indian Evidence Act has categorically held that when there is conflict of opinion of two doctors, the opinion of the doctor who actually examined the injured or held postmortem must be preferred to the expert opinion of the doctor who gave his opinion only on the basis of injury report. X-ray report and post-mortem report etc. 35. Even if we go to the extent that there is some relevancy of the evidence of Dr. Satpati (P.W. 46) opining that the death of the deceased persons was homicidal in nature, according to us, the opinion is only advisory. Indeed, the duty of expert witness is to furnish the material with the necessary scientific criteria for deciding the accuracy of the conclusion so as to enable the Judge to form independent judgment by the application of criteria supplied to the facts proved by the witness of the case. The credibility of such expert witness depends upon the reasons stated in support of his conclusion and the data and material furnished, forming his conclusions. To us, because Dr. The credibility of such expert witness depends upon the reasons stated in support of his conclusion and the data and material furnished, forming his conclusions. To us, because Dr. Satpati (P.W. 46) has not examined the dead bodies and has only on the basis of the CDs and certain photographs and the statements of some witnesses recorded under Section 161, Cr.PC., therefore, whatever opinion in regard to homicidal death has been given by him, is only based on conjectures and surmises.. In this regard, we may profitably place reliance upon the decision of Apex Court in Ramesh Chandra Agarwal v. Regency Hospital, AIR 2010 SC 806 . On the basis of aforesaid facts and circumstances and the evidence as well as the law which we have enumerated hereinabove, on this ground, it is difficult to infer that the death was homicidal in nature. Although we can infer that the death of the deceased persons was homicidal since the dead bodies were exhumed. 36. As per the case of the prosecution, which we have already stated hereinabove that when the dead bodies were exhumed, their hands were found to be tied from the back. The learned Trial Court in Para 8 of its judgment (internal page No. 8) has also given a finding that the hands of the dead bodies were tied from the back. But, this fact does not find place in the Panchnama (Exh. P-11) to dig the pit. In this context, in the Panchnama only this much has been mentioned that the dead bodies were exhumed and taken out from the pit. In the Panchnama of identification of the dead bodies (Exh. P-12) also this fact does not find place. Exh. P-11, which is the Panchnama to dig the pit, has been proved by the evidence of Kamal Singh (P.W. 11), who has deposed that when the pit was dug the dead bodies of the aforesaid deceased persons were exhumed and they were identified by Ayodhya Prasad (P.W. 29) father of first deceased Mukesh. This witness has also not deposed that when the dead bodies were exhumed their hands were tied from the back. The witnesses to the Panchnama (Exh. P-11) are Paresh (not examined), Rajesh s/o Sandilyakar (not examined), Tirath Prasad (not examined), Vinod Kamlani (not examined) and Sourabh (P.W. 49). This witness has also not deposed that when the dead bodies were exhumed their hands were tied from the back. The witnesses to the Panchnama (Exh. P-11) are Paresh (not examined), Rajesh s/o Sandilyakar (not examined), Tirath Prasad (not examined), Vinod Kamlani (not examined) and Sourabh (P.W. 49). Similarly, Ayodhya Prasad (P.W. 29) is also not saying that the hands of dead bodies were tied from the back. Sourabh (P.W. 49) has simply proved Exh. P-40 and according to him in his presence the Panchnama of the dead body of Ashi (Exh. P-41) was prepared. However, this witness is not at all saying in the Court that the hands of the deceased Ashi were tied but this fact finds place in the said Panchnama that the hands of the dead body of Ashi were tied. 37. One Rajesh s/o Prakash Kunwar (this Rajesh is not the witness of Exh. P-11) was examined as P.W. 50. According to him, one year ago (this witness was examined on 21-12-2006) he had gone with the Investigating Agency to Vivekanand Colony at Balaghat where the pit on the rear side of one house was dug by him on the direction given by the Investigating Agency. According to this witness, on digging the pit four dead bodies were exhumed. This witness has put his inability that the dead bodies were of whom. 38. Ashok (P.W. 48) is a photographer. This witness on 6-10-2004 went to the house in question and took out seven photographs of the spot which are Exhs. P-70 to P-76 and their negatives are Exhs. P-70-A to P-76-A. This witness has also videographed the entire post-mortem and prepared the CD, which is Exh. P-77. But, this witness too is not saying that the hands of the dead bodies were tied. Thus, the only incriminating Panchnama of the dead body whose hands were tied by a rope is Exh. P-41 but Sourabh (P.W. 49), who has proved this document has not at all stated that the hands of third deceased Ku. Ashi were tied. Indeed, according to us, the substantial piece of evidence is not the document but the oral evidence which is deposed by the witnesses in the Court. For the sake of argument even if we assume that the hands of third deceased Ashi were tied, the question then would arise as to who had tied her hands. Ashi were tied. Indeed, according to us, the substantial piece of evidence is not the document but the oral evidence which is deposed by the witnesses in the Court. For the sake of argument even if we assume that the hands of third deceased Ashi were tied, the question then would arise as to who had tied her hands. For the dead bodies of Mukesh, Archna and Shivam there is apparently no witness either documentary or oral on record in order to hold that their hands were also tied. 39. Another major factor, which also cannot be marginalised and blinked away is that even if we assume to the remote extent that the family members have committed suicide by consuming some poisonous substance, although it is not the case of the prosecution, but the question would still arise as to how and by whom the dead bodies were buried. Thus, we can infer with certainty that there must be some person who did this vile act. The question still arises for our consideration as to whether there is any cogent evidence against the appellants in that regard, which we will discuss while taking out the grain from chaff after marshalling the evidence and circumstances which are summarised in Para 33 of the impugned judgment. 40. Shri Khan, learned Public Prosecutor has invited our attention to the testimony of Himmat (P.W. 1), Ajablal (P.W. 44), Kharaglal (P.W. 43), Farooq (P.W. 30), Phaggulal (P.W. 31) and Pramod (P.W. 35) to prove that the accused persons approached these witnesses to dig the pit so that the dead bodies may be buried in it. Himmat Singh (P.W. 1) is a labour. According to him, when he was sitting at Rajgarh Chouraha nobody hired him to discharge the labour work as a result of which he came back in the evening. This witness was declared hostile but the suggestion that on 1-10-2004 two boys approached him to dig the pit, has been emphatically denied by him. Kharaglal (P.W. 43) is again a labour and is also a hostile witness. He has put his inability although he has stated that two boys came to him and asked to dig a pit, but, he cannot identify those two persons. Kharaglal (P.W. 43) is again a labour and is also a hostile witness. He has put his inability although he has stated that two boys came to him and asked to dig a pit, but, he cannot identify those two persons. Further, he has put his inability as to whether the accused persons who are present in the Court are the same persons who hired him as well as Ajablal, Himmat and Kapoorchand and further he identified the house where along with the other labours he had dug the pit. However, this witness has stated that he did not take part in identifying the accused persons and he has declared hostile. Ajablal (P.W. 44) has not identified the accused persons in the dock. According to him, two years ago, in the morning two boys came to Gujari Chowk and asked that a pit is to be dug for water tank but he put his inability that those persons are the accused persons, who are present in the Court. 41. Farooq (P.W, 30) is a rickshaw-puller. According to him, two persons approached him two years ago at Rajghat Chowk and asked this witness to provide labour. This witness is also a hostile witness and he did not identify the accused persons in the Court. Phaggulal (P.W. 3 1) has stated that two boys came to Rajghat Chowk two years ago and one boy was saying that a pit is to be dug for water storage but he told that he is not a labour. However, he carried those two persons to Usha Bai (P.W. 5) and Madhu (P.W. 6). These two ladies are the hostile witnesses and put their inability that accused persons, who are present in the Court approached them to provide labour to dig a pit. Hence, according to us, at the most from the testimony of these witnesses this could be gathered that two boys approached these witnesses to dig a pit but who were they, nothing has been stated by these witnesses in their testimony. These witnesses are hostile witnesses and in cross-examination made by Public Prosecutor they have put their inability to identify the accused persons present in the Court. Hence, the appellants approached these witnesses to dig a pit so that the dead bodies can be buried in them, is not at all proved. 42. These witnesses are hostile witnesses and in cross-examination made by Public Prosecutor they have put their inability to identify the accused persons present in the Court. Hence, the appellants approached these witnesses to dig a pit so that the dead bodies can be buried in them, is not at all proved. 42. Shashi Bai (P.W. 7) is the domestic servant of deceased Mukesh. According to her, one year ago deceased Mukesh Namdeo along with his family had gone out of Balaghat and when he came back she discharged the domestic work for two days and on third day when she went to discharge the duty the house was found locked. After two days when she was crossing from the house of Mukesh, she found that rear side of his house was being dug by the labours and when she asked those persons that why they are digging the pit they told that two persons hired them and on their instructions they are digging the pit. On the next day morning, she found that father of deceased Mukesh was opening the lock of the gate of the house of Mukesh, but she told him that nobody is residing then why he is opening the lock, on this, father of deceased Mukesh told that he is having the key with him. To him also she told that two days back four persons were digging the pit. The evidence of this witness is neither here nor there because she has not identified any of the accused persons including the appellants in the Court. Further, she has deposed that her eyesight is weak and she cannot identify the persons. 43. We shall now consider the circumstances on the basis of which the learned Trial Court has convicted the appellants and acquitted the co-accused persons, which are summarised in Para 33 of the impugned judgment:-- Circumstance Nos. (i), (ii) and (iii): (i) The first deceased Mukesh was carrying on the business of selling Ayurvedic Medicine and first appellant Vivek Bithle was helping him to establish a small factory of Ayurvedic Medicine of forest produce. (ii) For the aforesaid purpose first appellant Vivek Bithle often visited the house of first deceased Mukesh and the first deceased also used to visit his house. (iii) First appellant Vivek Bithle in order to establish small factory of Ayurvedic medicine financed a sum of Rs. (ii) For the aforesaid purpose first appellant Vivek Bithle often visited the house of first deceased Mukesh and the first deceased also used to visit his house. (iii) First appellant Vivek Bithle in order to establish small factory of Ayurvedic medicine financed a sum of Rs. 1,50,000/- to first deceased Mukesh, which he did not return despite repeatedly it was demanded by the first appellant and, thus, he was little disturbed. 44. Learned Trial Judge has relied upon the aforesaid circumstances in order to prove the motive part. According to us, the motive is not having any significance when the case rests upon the direct evidence, but it has some relevance when the case of the prosecution is based upon the circumstantial evidence. In this context, we may safely rely upon two decisions of the Supreme Court, they are Surinder Pal Jain v. Delhi Administration, 1993 Supp (3) SCC 681 and Tanviben Pankajkumar (supra). In order to prove the motive part the prosecution has examined Shobhendra Daharwal (P.W. 38). This witness is well-acquainted with first appellant Vivek Bithle and the acquitted co-accused Ramanlal Bithle. He is also acquainted with the first deceased Mukesh. According to this witness, the deceased was residing in Vivekanand Nagar, Balaghat. This witness is also related to the fourth acquitted co-accused Ramanlal Bithle since he is his Mausaji (mother's sister's husband). First appellant Vivek Bithle is the son of acquitted fourth accused Ramanlal Bithle. According to this witness, acquitted co-accused Ramanlal Bithle retired from the Zinc India Co. Ltd. and started to reside in Nagpur from the year 2002. His son first appellant Vivek was also residing with him. Vivek came to search the business at Balaghat and was planning to establish a small factory of medicines of agricultural produce. First appellant Vivek happened to ask the details in regard to agricultural produce medicines but this witness was not having any knowledge in that subject because he is a Constable in Police Station. However, this witness introduced him with one Dr. Deshmukh of Balaghat in that context. This witness has further deposed that it was told by first appellant that he is taking the assistance of first deceased Mukesh to open a small factory of agricultural produce medicines and further told that he had financed Rs. 1,50,000/- to first deceased Mukesh. However, this witness introduced him with one Dr. Deshmukh of Balaghat in that context. This witness has further deposed that it was told by first appellant that he is taking the assistance of first deceased Mukesh to open a small factory of agricultural produce medicines and further told that he had financed Rs. 1,50,000/- to first deceased Mukesh. In this regard, first appellant often visited the house of first deceased Mukesh and in reciprocation Mukesh also often visited the house of first appellant Vivek Bithle. 45. According to Shobhendra (P.W. 38), first appellant was residing in his house where Mukesh used to visit. First appellant Vivek Bithle had also gone to a house of one officer where the small factory could be established and that house was also seen by this witness. The first appellant was trying to obtain NOC for the said factory from the Sarpanch and for that purpose deceased Mukesh asked first appellant Vivek to provide Rs. 1000 or 1500 to him to obtain NOC. Further, he has deposed that first appellant and deceased Mukesh in order to obtain requisite licence went to Bhopal but after 15 days first appellant came back from Bhopal and opened an account in State Bank, Balaghat in which he deposited Rs. 50,000/- and this fact was told by appellant Vivek to him. However, for the reasons best known to the Investigating Agency, no details and no document in regard to the opening of account in State Bank are filed and proved. Thus, there is only a bald statement of this witness that in State Bank, Balaghat one account was opened in which first appellant deposited Rs. 50,000/-. Further, this witness has deposed that in total he has financed Rs. 1,56,000/- to first deceased Mukesh but despite he has financed huge amount to him he is not establishing the small factory of agricultural produce medicines. It was also told by first appellant to this witness that because huge money of Rs. 1,56,000 was taken by first deceased Mukesh, he is little disturbed because Mukesh has not yet established the factory for which he financed him. This witness solicited him and told that he will interact with first deceased Mukesh and this interaction took place in the month of April, 2004. 1,56,000 was taken by first deceased Mukesh, he is little disturbed because Mukesh has not yet established the factory for which he financed him. This witness solicited him and told that he will interact with first deceased Mukesh and this interaction took place in the month of April, 2004. Further, this witness has deposed that in the month of April he along with first appellant went to the house of first deceased Mukesh. who also admitted the factum of taking loan of Rs. 1,56,000/- from first appellant and also told that a huge amount has been incurred in obtaining licence and machineries' and the entire amount has been wasted in providing bribe to the authorities but nothing has been done and he is not in a position to return the said huge amount although he will manage to return back some part of loan by the end of May, 2004. Further this witness has deposed that later on first appellant Vivek Bithle told that deceased Mukesh has returned Rs.21,000/- and told that Rs. 4000/- he will return in future. Thereafter, appellant Vivek Bithle also told that deceased Mukesh had paid Rs. 4000/- to him gradually according to his convenience. 46. In the latter part of his statement, Shobhendra (P.W. 38) has further deposed that when he came during the vacation at Balaghat, at that time, appellant Vivek Bithle came to him and told that he has obtained the licence for deceased Mukesh for medical practice but this witness scolded upon first appellant Vivek that why he has obtained licence for Mukesh to carry out the profession of doctor because Mukesh is gradually, as per his own convenience is returning the loan amount back which he took from him and further told the appellant Vivek to surrender the licence of medical practice which he had obtained for first deceased Mukesh. This witness has further deposed in Para 5 of his deposition that on 25-11-2004 he interacted with his wife from Roopjhar where he is posted on phone and on that date his wife Sunita told that the landlord of appellant Vivek has called her. This witness on 26-11-2004 came to Balaghat to distribute the dak and after discharging official duty in the evening went to the house of Kalawati Patle, who is the landlady of appellant Vivek, along with his wife Sunita. This witness on 26-11-2004 came to Balaghat to distribute the dak and after discharging official duty in the evening went to the house of Kalawati Patle, who is the landlady of appellant Vivek, along with his wife Sunita. In cross-examination (Para 8), he has admitted that whatever he has stated in his examination in chief has been deposed because those facts were told to him by first appellant Vivek. Specifically, this witness has admitted that appellant Vivek did not tell him that on which date he financed Rs. 1,50,000/- to deceased Mukesh. 47. One important fact in favour of appellants in Para 9 of his cross-examination is that he has categorically admitted that there was no dispute between first appellant and deceased Mukesh although it was told by appellant Vivek that deceased Mukesh has repaid a sum of Rs. 25,000/- gradually. It has also come in this testimony that when no clue was found by the Investigating Agency an award was declared to inform the name of assailants who have committed such a heinous crime. Further, he has admitted that daily this news and award was being flashed in the television and newspapers to give clue of the assailants. The Inspector General of Police and other police officers also arrived at Balaghat to find out the clue and several persons were taken to police station for interrogation on the basis of doubts but despite all this he did not tell these important facts to the higher officials of the police that there was some money transaction between first appellant and Mukesh. Further he has admitted that after 26-11-2004 the Investigating Agency team, which had gone to Nagpur and in that team he was also one of the member, even then he did not disclose these important facts to the police personnel and investigation agency. This witness has admitted that his statement under Section 161, Cr.PC. was recorded in February, 2005 although appellant Vivek was arrested in the month of November, 2004. In very specific words, this witness has deposed that on 28-11-2004, he narrated what transpired between deceased Mukesh and first appellant Vivek to the Superintendent of Police, but, despite it, his wife Sunita was not interrogated by the investigating agency. Looking to the discrepancies which are carved out from his testimony, his testimony becomes highly doubtful to rely the facts which he has stated in the Court. 48. Looking to the discrepancies which are carved out from his testimony, his testimony becomes highly doubtful to rely the facts which he has stated in the Court. 48. Shobhendra (P.W. 38) has further admitted that earlier to 28-11-2004 he did not narrate all the aforesaid facts, which he has deposed to any police personnel although he has gone with the team of investigation earlier to 28-11-2004 at Nagpur. He has further admitted that his statement was recorded twice. First statement was recorded on 28-11-2004 and later on his case diary statement was recorded on 7-2-2005. 49. Shri Khan, learned Public Prosecutor submitted that except this witness there is no other witness to prove the factum of alleged motive that first deceased Mukesh was not in position to return back the loan, which he took from the first appellant Vivek Bithle and therefore, four persons have been killed by the appellants. In very detail, we have discussed the testimony of this witness and we find that some part of his deposition is not admissible being hearsay. Even if his testimony is taken to be true in its entirety nothing has been carved out that relations between first appellant Vivek Bithle and deceased Mukesh became bitter and they were in inimical terms and in order to take revenge from deceased Mukesh, appellants have killed the first deceased Mukesh and all his family members. 50. We fail to understand that as per the prosecution's own case if a huge amount of Rs. 1,50,000/- was to be paid by deceased Mukesh to first appellant Vivek Bithle when why he will kill Mukesh, because if he is killed then certainly the loan amount will never be recovered by first appellant Vivek from him. Thus, according to us, the aforesaid three circumstances, which are relied by the learned Trial Court are not proving the motive part to kill the deceased persons by appellant. If the evidence in respect to motive part is disbelieved, the aforesaid three circumstances, become totally insignificant to form a complete chain to prove the guilt of the appellants and if we believe them to hold the appellants to be guilty of committing crime, it will amount to permit conjectures and suspicion to take place of strict legal proof, which we cannot do. At this juncture, it may be noted that the landlady of the first appellant Vivek, namely, Kalawati (P.W. 18), who has been examined to prove the aforesaid three circumstances, is a hostile witness. Circumstance Nos. (iv) and (v): (iv) From the house of acquitted co-accused Ramanlal Bithle at Nagpur, who is father of first appellant vide Exh. P-26 the key of the lock of the house of first deceased Mukesh was found in an iron ring and on the said key 'Pramod' was embossed. Some documents related to first appellant Vivek Bithle like photocopy of domicile certificate; quotations of Icon Equipment Pvt. Ltd.; some papers related to agricultural produce of medicine like Ashwagandha, and one photocopy of magazine by the name of Banaupjinchi Laagvad. These articles were seized in the presence of Vishal Bithle who is also one of the sons of acquitted co-accused Ramanlal Bithle. (v) The key which was recovered from the house of Ramanlal Bithle at Nagpur was of the lock of the house in question in which the deceased persons were residing. 51. We fail to understand that how and in what manner the prosecution is placing reliance upon the aforesaid two circumstances, which are also relied by learned Trial Court to hold that these are the two important links in the chain of circumstances. Admittedly, vide Exh. P-26, which is the seizure memo of articles certain articles mentioned in this document were recovered at the instance of acquitted co-accused Ramanlal. The memorandum statement leading to discovery of acquitted co-accused Ramanlal is Exh. P-25. From these documents even if the manner and method in which the recovery is made is taken to be proved (although looking to the evidence of the Investigating Officer as well as the witnesses the recovery, is not proved), at the most only this much is proved that certain articles were recovered from the house of acquitted co-accused Ramanlal from Nagpur on 17-11-2004 but the fourth accused Ramanlal has been acquitted by learned Trial Court and therefore, according to us even if some articles were recovered from his house at Nagpur at his instance how it can be said that they are related to the appellants and thus, according to us, the aforesaid circumstances cannot be said to be the important link to form a complete chain of circumstantial evidence unerringly pointing the guilt towards the appellants. Even if certain documents related to first appellant Vivek Bithle were seized from the house of acquitted co-accused Ramanlal at Nagpur, at the most it can inferred that he was indulged in some forest produce medicine and nothing more, which could hardly be a ground to convict the appellants in the alleged crime. Circumstance Nos. (vi), (vii), (xii) and (xv) (vi) In the FSL report of the curtains, cushion cover and upon the wall of the house of Mukesh blood stains of B+ group were found. (vii) At the relevant point of time on the right hand of the first appellant Vivek Bithle an injury was found, the dressing of which was done by Narendra Kumar Patle. The blood sample of first appellant Vivek Bithle was sent for DNA examination in which the presence of B+ group blood was found and no explanation has been given by the defence in respect of receiving the injury upon the hand of first appellant Vivek Bithle (xii) After some days of the incident appellant Vivek Bithle vacated the house of Kalawati, which he took on rental basis. (xv) From the rear side of the house of Kalawati Patle where first appellant Vivek Bithle was residing as tenant, one blood stained handkerchief, bandage and rope were seized. 52. True, in the FSL report of the curtains, cushion cover and upon the wall and floor of the house of Mukesh blood stains having B+ group were found and the same group B+ is that of first appellant Vivek Bithle but B+ blood group is usually common in most of the people. The DNA test also confirms the B+ blood group in the blood sample of first appellant Vivek Bithle, but, certainly according to us, it is not a conclusive proof and in this regard we may profitably place reliance upon the decision of Gujarat High Court Premjibhai Bachubhai (supra), and at the most the said report can be relied for the purposes of corroboration but with certainty it cannot be said that the identity of a person is proved. In this regard, we would like to quote Para 13 of the aforesaid decision, which reads thus:-- "13. In this regard, we would like to quote Para 13 of the aforesaid decision, which reads thus:-- "13. We are supported in our interpretation of the above report in above manner (and we are of the view that the language used by the Scientific Officer is also consistent with the science of DNA) by what has been observed in the I85th Report of the Law Commission of India, where, while accepting changes in Sections 9, 45 and 112 of the Evidence Act, following observations are made:-- While discussing report of the Australian Law Reform Commission, it is observed that:-- '......But the report then discusses about situations where the DNA samples match, the extent of probability of the identity and whether evidence of experts should be admitted on the question of probability, based on the DNA data available in the particular country.' This latter aspect is still quite complicated and we feel that where the DNA samples match, it is not necessary to make any provision at all at this stage of scientific development. But, so far as cases where the DNA samples do not match, it is now fairly accepted that the identity is not proved." In this decision, the reliance has been placed upon the decision of Supreme Court in Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 , in which it has been held that if the DNA result does not match then the identify of the person is not established. But, the contrary is not true. 53. That apart, another glaring defect going to the root of the matter and which cannot be marginalised and blinked away is that twice the blood samples of first appellant Vivek Bithle were obtained. In this regard, if we go through the testimony of the Investigating Officer Arvind Jain (P.W. 64) in cross-examination Paras 67 and 68, we find that on 23-11-2004 first sample to perform DNA test of first appellant Vivek Bithle was obtained and on 24-11-2004 the blood sample of second appellant Sunil Bithle to perform the said test was also obtained. Although in Para 67, the suggestion put to the Investigating Officer that these blood samples of first and second appellant were obtained on 23-11-2004 and 24-11-2004 respectively for DNA test which was to be performed at Hyderabad Laboratory, has been denied by the Investigating Officer. Although in Para 67, the suggestion put to the Investigating Officer that these blood samples of first and second appellant were obtained on 23-11-2004 and 24-11-2004 respectively for DNA test which was to be performed at Hyderabad Laboratory, has been denied by the Investigating Officer. But, somersaulting his answer in negative in Para 68 he has specifically admitted that the samples, which were taken on 23-11-2004 and 24-11-2004 of first and second appellant respectively were obtained to perform DNA test at Hyderabad. But, according to us, the said collection of blood sample on these dates is totally in contravention to Section 53, Cr.PC. as well as Article20(2) of the Constitution of India. Taking the pre-requisite permission is a condition precedent and this has been so held by Orissa High Court in Thogorani alias K. Damayanti v. State of Orissa and others, 2004 Cri.L.J. 4003, Para 12 and consequences of not obtaining permission are enumerated in Paras 22 and 23 and indeed, such an action is contrary to Article 20(2) of the Constitution of India. We may also refer to eleven Judge Bench decision of Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 , Para 15, Smt. Selvi and others v. State of Karnataka, AIR 2010 SC 1974 , Paras 83 and 84 and Mr. 'X' v. Hospital 'Z', AIR 1999 SC 495 . 54. The blood sample of first appellant Vivek Bithle which was obtained by the Investigating Officer on 5-1-2005 was obtained after taking due permission from the Magistrate and in this regard, we have gone through the record of the Chief Judicial Magistrate Court and we find that requisite application seeking permission to obtain blood sample for DNA test was filed on 4-1-2005 and on going through the order we find that such a permission was granted by the Chief Judicial Magistrate on 4-1-2005. 55. In regard to prove the circumstances enumerated in circumstance No. (vi), it has been tried to be interlinked with circumstance No. (vii) that first appellant Vivek Bithle was having some injury on his hand and therefore, while committing the crime the blood started oozing from his wound and it stained different articles of the house of deceased persons, which are mentioned in the seizure memo (Exh. P-44), but, according to us, if this circumstance is taken to be true, again it will be a suspicion based upon the conjectures and surmises because in the arrest memo of first appellant Vivek Bithle (Exh. P-6), dated 20-11-2004. no injury was found in the prescribed column and specifically in the requisite column 'Nil' has been mentioned. Although one old scar above left eye was found, but it was only for the purposes of identification of accused who has been arrested. Nowhere it has come in the arrest memo that first appellant Vivek Bithle was having injury on his hand or any other part of his body. 56. On the point of having injury upon the hand of first appellant Vivek Bithle, the prosecution has examined Dr. Suresh Gavde (P.W. 59). This witness is serving in District Hospital, Balaghat as Medical Officer since 18-12-2004. On this date, one Constable Kunwar Bisen brought first appellant Vivek Bithle for medical examination and on his examination it was found that on the ring finger of his right hand there was an old healed wound of 2 cm, in which the patient was complaining pain on being touched. The MLC reported is Exh. P-91. In this document as well as in the deposition of the doctor he has put his inability that how much old the scar may be. In cross-examination, he has admitted that the investigating agency sought his opinion that how much old the injury was and in that regard he specifically told that duration of injury cannot be given. The Investigating Officer Arvind Jain (P.W. 64) in Para 39 has also admitted that when he arrested first appellant Vivek Bithle, he did not find any injury upon his body and he wrote 'Nil' in the prescribed format of arrest memo. We would like to mention here that on 20-11-2004 vide arrest memo (Exh. P-4), this appellant was arrested in which no injury was found on his person. From 20-11-2004 throughout this appellant is in the jail and he was produced before the said doctor for his examination on 18-12-2004. i.e., almost within a month from the dale of his arrest. We would like to mention here that on 20-11-2004 vide arrest memo (Exh. P-4), this appellant was arrested in which no injury was found on his person. From 20-11-2004 throughout this appellant is in the jail and he was produced before the said doctor for his examination on 18-12-2004. i.e., almost within a month from the dale of his arrest. In these state of affairs, when specifically the doctor has put his inability that how much old the scar on the hand of appellant Vivek Bithle is, with certainty it cannot be said that on the date of the commission of the offence, which according to the prosecution is 30-9-2004, this appellant was having wound and thus, while committing the crime the blood started oozing from his wound which stained several articles of the house of deceased persons, which we have already mentioned hereinabove. 57. The learned Trial Court has paid much heed to the aforesaid circumstances holding that appellants are guilty of the offence. To prove the injury upon the finger of the right hand of appellant Vivek Bithle. the prosecution has also examined Kalawati Bai Patle (P.W. 18) and Narendra Kumar Patle (P.W. 34), who is a LIC agent and is a part timer compounder, Kalawati (P.W. 18) was the landlady of first appellant Vivek Bithle and according to her appellant took house on rental basis @ Rs. 750/- per month in January, 2004 and vacated it on 13-11-2004. Narendra Kumar (P.W. 34) is the nephew of this lady and is also a compounder and LIC agent. According to P.W. 18, one year ago (this witness was examined on 5-12-2005) during the period of election of Legislative Assembly this accused vacated her house. At that time, she noticed that Vivek Bithle was having some injury on his hand and on being asked by her that how he had received injury, he told that by the impact of some iron object he had received the injury. This witness is a hostile witness and has not supported the case of the prosecution in material terms but this much has come in her examination-in-chief that the date when the appellant was vacating her house he was having some injury on his right hand. This witness is a hostile witness and has not supported the case of the prosecution in material terms but this much has come in her examination-in-chief that the date when the appellant was vacating her house he was having some injury on his right hand. In cross-examination, this witness has specifically admitted that one month after her house was vacated by first appellant Vivek Bithle, the police took her statement, which would mean that near about on 1-11-2004, the case diary statement of this witness was taken. She has further admitted in her cross-examination that appellant Vivek Bithle resided in her house for nine months. She has also put her inability to narrate the date and month on which appellant Vivek Bithle received the injury. Thus, at the most if we go upto the remote extent it can be inferred that first appellant Vivek Bithle was having some injury on the finger of his right hand but how old it was or on the date of commission of the offence (which according to the case of the prosecution is 30-9-2004) how much old it was, with certainty it cannot be said particularly when in the arrest memo (Exh. P-4) no injury has been mentioned by the Investigating Officer and who has also admitted this fact in Para 39 of his cross-examination. 58. Narendra Kumar Patle (P.W. 34) is a compounder and is also an LIC agent. According to him, Kalawati (P.W. 18) is her aunt. According to this witness, on 30-9-2004 after attending the hospital of Dr. Kelkar when he arrived at his home, he had gone to her aunt Kalawati's house near about at 8 p.m. He found that Vivek Bithle was having some injury and he inserted one tetanus injection to him and also dressed the wound. According to this witness, Kalawati's house was vacated by appellant Vivek Bithle on 13-10-2004. In his examination-in-chief, this witness has admitted that the investigating agency arrived at his house which is at Shanti Nagar and from the rear side of his house, seized the bandage, prescription slips etc. Thereafter, this witness was declared hostile. In cross-examination made by Public Prosecutor, he denied the suggestion that on being asked to the accused Vivek Bithle that how he has received the injury, accused Vivek Bithle told that while keeping the scooter inside by the impact of handle he has received the injury. Further. Thereafter, this witness was declared hostile. In cross-examination made by Public Prosecutor, he denied the suggestion that on being asked to the accused Vivek Bithle that how he has received the injury, accused Vivek Bithle told that while keeping the scooter inside by the impact of handle he has received the injury. Further. he denied the suggestion that earlier to 30-9-2004 accused came to his house along with his cousin brothers Sunil Bithle and acquitted co-accused Sachin Samargade and Sachin was also having injury in his hand, but, denied the suggestion that Sachin told him that first appellant Vivek Bithle received the injury while keeping the scooter of deceased Mukesh Namdeo inside his home. However, in cross-examination, Para 5 made by Public Prosecutor he has admitted that on 16-11-2004 on the rear side of the house of Kalawati Patle (P.W. 18) one prescription of medicine vide seizure memo (Exh. P-79) (wrongly typed in deposition sheet as Exh. P-58) was seized, which bears his signature from place A to A. Again in the cross-examination, suggestion which was put by Public Prosecutor to this witness has been denied that in the night of 1-10-2004, appellants Vivek, Sunil and acquitted co-accused Sachin Samargade arrived at her house and told that they are going to the house of one Proben Bhaiya and before the dawn hours all these three persons after jumping the boundary wall came to the rented house in which appellant Vivek Bithle was residing. On being confronted with the sealed packet, i.e., articles of recovery mentioned in Exh. P-79 that on the medical prescription his signature is appearing, this witness told that he cannot identify the signature as well as the handwritten prescription. In cross-examination made by Public Prosecutor this witness has admitted that in his aunt Kalawati's house where Vivek Bithle was residing as tenant, the rear side of his house is open to public access and several persons cross through that place. Further he has deposed that on 13-10-2004, accused Vivek Bithle vacated the house and after one month on 16-11-2004 upon the seizure memo (Exh. P-79) his signatures were obtained by the investigating agency. The articles, which were seized were highly decomposed. Hence, according to us, the evidence of Narendra Kumar Patle (P.W. 34) cannot be relied upon so as to convict the appellants. 59. Investigating Officer Arvind Jain (P.W. 64) has deposed that on 16-11-2004 vide Exh. P-79) his signatures were obtained by the investigating agency. The articles, which were seized were highly decomposed. Hence, according to us, the evidence of Narendra Kumar Patle (P.W. 34) cannot be relied upon so as to convict the appellants. 59. Investigating Officer Arvind Jain (P.W. 64) has deposed that on 16-11-2004 vide Exh. P-79 he seized certain articles in presence of Anurag Mishra and Narendra Kumar Patle (P.W. 34). According to the Investigation Officer, on 21-11-2004 in the presence of witnesses he arrested first appellant Vivek Bithle and arrest memo in that regard is Exh. P-6. In Para 31 of his cross-examination, this witness has admitted that the articles mentioned in Exh. P-79, which were seized were lying in the open place and on the date of seizure accused Vivek Bithle was not residing in it and someone else was residing. On going through the seizure memo (Exh. P-79) we find that the articles cotton, a piece of rope of one meter, one white coloured handkerchief which was used as bandage stained with blood, used bandage, cotton in which blood stains were found, gents wallet on which the earth was sticking, one torn piece of paper on the rear side Vivek is written and one paper of old letter pad on which several signature marks were tried to be made, were seized. According to us, when the first appellant Vivek Bithle was arrested on 20-11-2004 and these articles were seized much earlier to it and further that it has come in the testimony of the prosecution witnesses that on 13-10-2004 first appellant Vivek Bithle vacated that house and thereafter, somebody else is residing in the said house, the relevancy of these articles would be totally insignificant and it cannot be said that they are related to the crime in question. 60. Hence, it cannot be said with certainty that first appellant received some injury earlier to the date of incident, which according to the prosecution is 30-9-2004 and whatever the evidence is collected is only a guess work and if we rely upon it, it will be only conjecture and suspicion and it cannot take place of strict proof. Hence, it is difficult to hold that the circumstance Nos. (vi) and (vii) and (xv) are the important links to connect the appellants with the alleged crime. 61. Hence, it is difficult to hold that the circumstance Nos. (vi) and (vii) and (xv) are the important links to connect the appellants with the alleged crime. 61. As regards the circumstance No. (xii), as per the case of the prosecution the incident had occurred on 30-9-2004, but from the case of the prosecution itself it is proved that immediately thereafter the appellant Vivek Bithle did not vacate the house of Kalawati. On the other hand, it was vacated only on 13-10-2004. That apart, it is not the case of the prosecution that appellants were absconding from Balaghat town. Hence, according to us, the learned Trial Court erred in holding that all of a sudden Vivek Bithle vacated the house of Kalawati (P.W. 18) or this is an important circumstance to connect the appellants with the crime. Circumstance Nos. (viii) and (ix): (viii) From the shop of Dinesh Pashine, two spades and one wooden stick was purchased by appellant Vivek Bithle. Vide identification memo (Exh. P-32) said Dinesh Pashine identified first appellant Vivek Bithle. There is no explanation of first appellant Vivek Bithle that why he bought spades and Bainta (a wooden stick which is fixed in the spade); (ix) From the bathroom of the house of first deceased two spades upon which the earth was sticking were seized and the said earth was found to be of the same pit which was dug. 62. To prove these two circumstances, the prosecution has examined Dinesh Pashine (P.W. 56). According to him, in the year 2004 he was serving as a salesman in Kapil Hardware at Balaghat. Three years ago, between 11 to 12, in the afternoon two boys arrived and asked whether spade is sold in the shop and they bought two spades. This witness has identified first appellant Vivek Bithle in the Court but put his inability that who was the second person amongst the four accused persons. In cross-examination, he has admitted that in the shop, spades and other articles are being sold in wholesale. Further he has deposed that he cannot say that to whom he sold the spades when he was serving as salesman in the said shop. He has further admitted that in the shop daily four to five hundred people used to come and purchase the articles. Further he has deposed that he cannot say that to whom he sold the spades when he was serving as salesman in the said shop. He has further admitted that in the shop daily four to five hundred people used to come and purchase the articles. This witness has also identified accused Vivek Bithle in jail on 3-12-2004 and the identification memo is Exh. P-32. It be noted that first appellant was already arrested on 20-11-2004 and after 13 days of his arrest in the jail he was put for test identification. Even if the evidence of identification of accused Vivek Bithle by Dinesh Pashine is accepted at the most it could be said that first appellant had bought the spade. Admittedly, as per the case of the prosecution this appellant is indulged in the business of forest produce medicine and therefore, if the spade was bought by this appellant, it will be difficult to say that the appellant Vivek Bithle is related in the crime. It is more so, when the spade was not recovered from his house and as per the case of the prosecution, it was seized from the house of deceased Mukesh who was also indulged in the similar type of profession in which appellant Vivek Bithle was indulged. Therefore, with certainty it cannot be said that the spades, which were seized from the bathroom of deceased persons were the same spades which were bought by the appellants particularly when at least 300-400 customers used to purchase different articles from this shop. Therefore, with certainty it cannot be said that the appellants bought the spades from the shop in which Dinesh Pashine was serving as salesman, to dig the pit where the dead bodies of the deceased persons were buried. There is absolutely no evidence of Dinesh Pashine that first deceased Mukesh Namdeo never purchased any spade from his shop. 63. We have already discussed in Paras 41 and 42 of this judgment while discussing the evidence of certain labours who were hired to dig a pit so that the dead bodies may be buried and we have already held that this circumstance is not proved. Our reasonings stated in those two paras may also be read in the context of these two circumstances. Our reasonings stated in those two paras may also be read in the context of these two circumstances. Hence, it cannot be said that these two circumstances are the important link to form a complete chain, proving the guilt towards the appellants. Circumstance Nos. (x) and (xi) (x) On the basis of discovery statement made by second appellant Sunil Bithle from his house at Delhi, the mobile phone, charger and camera of deceased Mukesh were seized. (xi) On the basis of the information given by second appellant Sunil Bithle the articles, which were seized from his house they were found to be of first deceased Mukesh Namdeo and this fact has been proved from the evidence of Akhil Vaidya (P.W. 37) and Atul Kulsheshtra (P.W. 63). 64. These two circumstances are very important and according to the prosecution, because on the memorandum statement leading to discovery of the articles, which were of deceased Mukesh were seized from Sangam Vihar at Delhi. The appellant Sunil Bithle was arrested on 22-11-2004 vide arrest memo Exh. P-87. Earlier to this date, the memorandum statement of appellant Sunil Bithle (Exh. P-8) was made on 21-11-2004 which was recorded in presence of witness Sheikh Shafiq (P.W. 8). The other witness of memorandum statement Devendra has not been examined. A bare perusal of the memorandum statement, which was prepared by the Investigating Officer Arvind Jain (P.W. 64), we find that the statement was given by accused Sunil on 21-11-2004 at 1.30 hours in the night and this has also been so stated by the Investigating Officer Arvind Jain (P.W. 64) in Para 43 of his statement, but, according to the witness of this seizure memo Sheikh Shafiq (P.W. 8) in the afternoon of 21-11-2004 at 1.30 the memorandum statement was prepared. In cross-examination, this witness has remained firm that the memorandum statement was recorded in the afternoon and not in the night. Further, when he was confronted with the document of memorandum statement dated 21-11-2004 (Exh. P-8) he has deposed that the factum of preparing this document (Exh. P-8) in the night is wrong and he further clarified that in the night the accused Sunil Bithle did not give any statement. This witness was never declared hostile and therefore, the prosecution is bound by his statement. P-8) he has deposed that the factum of preparing this document (Exh. P-8) in the night is wrong and he further clarified that in the night the accused Sunil Bithle did not give any statement. This witness was never declared hostile and therefore, the prosecution is bound by his statement. In this context, we may profitably place reliance upon the two decisions of Supreme Court, they are Mukhtiar Ahmed Ansari v. State (NCT of Delhi), 2005 SCC (Cri) 1037 and Raja Ram v. State of Rajasthan 2005 SCC (Cri) 1050 (Para 9). 65. The material discrepancy and contradictions which are carved out from the statement of these two witnesses, the memorandum statement (Exh. P-8) becomes highly suspicious because the witness says that in the afternoon, it was recorded while according to the Investigating Officer in the late night it was prepared and certainly the evidence of both the witnesses cannot exist at one point of time. 66. In the memorandum statement while in police custody in Kotwali, Balaghat second appellant Sunil Bithle has stated that he along with acquitted co-accused Sachin Samargade and Vivek Bithle after committing the murder of accused persons has secretly kept a camera, mobile of Reliance Company and its charger in Delhi inside the kitchen of his house No. 396, Gali No. 8, First Block, Sangam Vihar, Delhi and the same may be recovered. According to us, this statement is not admissible. Nowhere in the memorandum statement the accused has said that he has kept these articles in Delhi. Similarly, the statement which he has given in this document that "in his house" is not admissible. The position would have been different if the memorandum statement contains such type of statement of second appellant Sunil Bithle that "I have kept the articles camera etc. in the house at Delhi", but, nowhere the accused Sunil Bithle is saying that he has kept the articles in the house at Delhi. The legal position in this regard is well-settled. In Pitlukuri Kottaya (supra), Their Lordships of Privy Council have laid down the law that accused in the police custody if has said that "I will produce a knife concealed in the roof of my house" does not lead to discovery of the knife and it leads the discovery of the information and discovery of fact. In Pitlukuri Kottaya (supra), Their Lordships of Privy Council have laid down the law that accused in the police custody if has said that "I will produce a knife concealed in the roof of my house" does not lead to discovery of the knife and it leads the discovery of the information and discovery of fact. Their Lordships have further held that "I stabbed 'A' these words are inadmissible" since they do not relate to the discovery of the knife in the house of the informant. Thus, similarly, the statement of second appellant Sunil Bithle that "I have committed murder of deceased persons" is inadmissible. 67. According to us, there is quite distinction between the sentence "I have kept the camera, mobile phone and its charger inside the kitchen of house No. 396, Gali No. 8, First Block, Sangam Vihar at Delhi" and the sentence that articles "camera, mobile phone and its charger are kept or will be found inside the kitchen of house No. 396, Gali No. 8, First Block, Sangam Vihar at Delhi and will be recovered". The former sentence connotes that appellant Sunil Bithle had exclusive possession of camera, mobile phone and its charger at least for some time so that he was in position to keep these articles in the said house at Delhi but the latter would only imply that appellant Sunil Bithle somehow acquired the knowledge about their whereabouts. According to us, if former part of statement would have been given it would have been a relevant and material piece of evidence, which could have implicated the second appellant Sunil Bithle in the crime but latter would not implicate him in the alleged offence. In this context, we may profitably place reliance upon the decision of Supreme Court Trimbak (supra). The decision of Pulukuri Kottaya (supra) was followed in Para 9 by the Supreme Court in Prabhoo (supra). The same view has been taken by the Supreme Court in its later decision in Mujeeb and another v. State of Kerala, AIR 2000 SC 591 , Paras 19 and 20. Hence, whatever has been stated by second appellant Sunil Bithle in his memorandum statement (Exh. P-8) does not prove that at any point of time he was in possession of the articles, i.e., camera, mobile phone and its charger. 68. The witness to memorandum statement (Exh. Hence, whatever has been stated by second appellant Sunil Bithle in his memorandum statement (Exh. P-8) does not prove that at any point of time he was in possession of the articles, i.e., camera, mobile phone and its charger. 68. The witness to memorandum statement (Exh. P-8) Sheikh Shafiq (P.W. 8), in his deposition has deposed in the Court that accused Madanlal in the police custody told that one cellphone of Reliance Company, its charger and a camera is kept beneath the cement bags in the kitchen of house No. 396, Gali No. 8, First Block, Sangam Vihar at Delhi and they may be recovered. It be noted that no accused by the name Madanlal was tried. Admittedly, no articles were seized in the presence of this witness because the witnesses to the seizure memo of the articles are Amar Nath Singh Chouhan (P.W. 57) and Ashok Kumar (not examined). In the seizure memo (Exh. P-85), dated 22-11-2004, it is mentioned that in the kitchen of house No. 396, Gali No. 8, First Block, Sangam Vihar at Delhr nearby the cement bags one camera on which ASHICON is embossed along with its black cover on which also ASHICON is written and one Reliance Phone by switching it on, the name of Reliance Company is flashed, one charger of LG Company, were seized from the house of second appellant Sunil Bithle. Except the oral testimony of the witness to the seizure Amar Nath Singh Chouhan (P.W. 57) and Investigating Officer Arvind Jain (P.W. 64) there is absolutely no evidence that this house is of appellant Sunil Bithle. There is absolutely no material on record to hold that this appellant was the owner of the said house or was a tenant or his possession was permissive. Further, there is no evidence that second appellant gave the key of that house to someone else or the key of that house has been lost. Hence, the access of appellant Sunil Bithle to this house to keep the articles mentioned in Exh. P-85 and that too at Delhi, which is more than 1000 kilometers from Balaghat, becomes highly doubtful. 69. The recovery memo of articles Exh. Hence, the access of appellant Sunil Bithle to this house to keep the articles mentioned in Exh. P-85 and that too at Delhi, which is more than 1000 kilometers from Balaghat, becomes highly doubtful. 69. The recovery memo of articles Exh. P-85 has been proved by Amar Nath Singh Chouhan (P.W. 57), who is a security guard of Sangam Vihar, Delhi where the house No. 396 is situated but despite he is security guard in that building, this witness is not acquainted with the appellant. Although he has stated that one person was brought by police personnel. Later on, this witness was declared hostile and he put his inability that the name of the accused is Sunil Bithle. Further, he has deposed that he does not know that the room from which the articles were recovered belongs to appellant Sunil Bithle. In cross-examination made on behalf of the accused Sunil Bithle, this witness has admitted that who is the owner and who was the tenant of the said house, he cannot say. In very specific terms, this witness has admitted that the investigating agency team went inside the said house and he was throughout standing outside only. Further, he put his inability that the police persons gave their own search before recovering the articles from their house and no document was prepared in that regard. Further, he has admitted that because he remained outside of the said house, therefore, his personal search was not made. He has also stated that from where the camera, mobile phone and its charger were brought he cannot say. Thus, the recovery of camera, mobile phone and its charger in the light of the aforesaid evidence of P.W. 57, the recovery of articles as mentioned in Exh. P-85, becomes highly doubtful because in the presence of P.W. 57, these articles were never recovered. Thus, it cannot be said that the recovery has been proved upon the disclosure statement of second appellant Sunil Bithle. It would be condign to mention here that out of the articles camera, cellphone and its charger, which are said to have been seized from Delhi upon the memorandum statement of second appellant Sunil Bithle, one camera was put for test identification but the charger and cellphone were not put for test identification. Exh. It would be condign to mention here that out of the articles camera, cellphone and its charger, which are said to have been seized from Delhi upon the memorandum statement of second appellant Sunil Bithle, one camera was put for test identification but the charger and cellphone were not put for test identification. Exh. P-35 is the identification memo of camera only, which was identified by father of deceased Mukesh Namdeo, namely, Ayodhya Prasad (P.W. 29). But why other articles were not put for identification, there is no explanation. We fail to understand that if it is said that mobile phone was of deceased Mukesh, why its call details etc. and on which date and at what time deceased Mukesh interacted last and with whom before his death, were not filed and proved. According to us, this could be a very relevant piece of evidence. But for the reasons best known to the investigating agency the necessary evidence was not collected in that regard. According to us, it was also very much necessary when the case rests upon the circumstantial evidence, so as to take out the grain from the chaff. 70. Another glaring inherent mistake which cannot be marginalized and blinked away is that the articles camera, cellphone and its charger were never produced in the Court and were got identified by Ayodhya Prasad (P.W. 29), father of deceased Mukesh in the Court and therefore, according to us the alleged recovery of articles camera, cellphone and its charger, if has any relevance to connect the accused-second appellant Sunil Bithle in the crime, for this additional reason also it is not proved. 71. According to the prosecution, purchasing of the said cellphone by deceased Mukesh has been proved from the statement of Akhil Vaidya (P.W. 37), who has deposed that 3-1/2 years ago first deceased Mukesh Namdeo purchased one cellphone of LG Company in which the postpaid SIM of Reliance Infocom was provided to him. The requisite form to obtain the cellphone was filled by Mukesh Namdeo, which he sent to Reliance Company, however, no such form has been seized by the investigating agency. The copy of the form of purchasing of the mobile phone which is in his office in that form, phone number is not written and RSN number is also not written. The requisite form to obtain the cellphone was filled by Mukesh Namdeo, which he sent to Reliance Company, however, no such form has been seized by the investigating agency. The copy of the form of purchasing of the mobile phone which is in his office in that form, phone number is not written and RSN number is also not written. The other important witness in regard to purchasing of mobile phone by Mukesh is Atul Kulshreshtha (P.W. 63), who at the relevant point of time was serving in Reliance Infocom and now he has left that job. According to him, in reply to letter dated 29-1-2005 of Police Station, Katangi, he sent a letter in writing on 31-1-2005 that Mobile Phone No. 7632310247 was sold to Mukesh Namdeo, Ward No. 26 of Vivekanand Colony of Balaghat, which is of LG Company whose RSN number is RLGH1001513100. The said written reply is Exh. P-92. From the evidence of these two witnesses at the most only this much is proved that deceased Mukesh purchased one mobile of LG Company but whether it was the same mobile which was seized from House No. 396, Gali No. 8, First Block, Sangam Vihar, Delhi, this has not been proved nor the said mobile set was put for lest identification nor produced in the Court for its identification by the father of deceased Mukesh, namely, Ayodhya Prasad (P.W. 29). Hence, according to us, the circumstance Nos. (x) and (xi) do not indicate that the recovery of the cellphone and its charger is proved against accused-second appellant Sunil Bithle. Circumstance Nos. (xiii) and (xiv): (xiii) On the basis of the information supplied by Vivek Bithle, in the jungle of Garrakothi nearby the pond the burnt pieces of Jari saree, clips of the suitcase, clips of the file, buttons of the suitcase, two burnt plastic pieces etc. were seized. (xiv) The wallet and the camera of the first deceased Mukesh Namdeo were identified by his father Ayodhya Prasad. The camera of deceased Mukesh Namdeo was seized from the house of Sunil Bithle at Delhi. The wallet of Mukesh Namdeo was seized from the rear side of the house of Kalawati in which first appellant Vivek was residing as tenant. 72. The memorandum statement under Section 27 of the Evidence Act of first appellant Vivek Bithle is Exh. P-4. The camera of deceased Mukesh Namdeo was seized from the house of Sunil Bithle at Delhi. The wallet of Mukesh Namdeo was seized from the rear side of the house of Kalawati in which first appellant Vivek was residing as tenant. 72. The memorandum statement under Section 27 of the Evidence Act of first appellant Vivek Bithle is Exh. P-4. The witnesses to this memoradum are Kailash Kumar Dhaneshwar (P.W. 36) and Rajesh Dubey (P.W. 7). According to this memorandum, first appellant Vivek Bithle gave the disclosure statement that after pressing the neck of the deceased persons and causing their murder along with his brothers Sunil Bithle and Sachin Samargade, three suitcases kept in the house of deceased Mukesh were brought by him and on 14-10-2004 carried these three suitcases from Balaghat to his ancestral house at Chaitbari and thereafter, he went to Garrabodi where in the jungle nearby a pond, burnt those three suitcases. According to the witness to this memorandum statement, Kailash Kumar Dhaneshwar (P.W. 36) the disclosure statement was given on 20-11-2004 at 10 a.m. in the police station by first appellant Vivek Bithle and on its basis the memorandum (Exh. P-4) was written. According to this witness, in his presence Vivek Bithle told that on 30-9-2004 he took away three suitcases (one big size and two small size) and on 14-10-2004, after murdering the deceased persons along with other accused persons on the way in the jungle in between Chaitbari to Garrabodi nearby a pond they were burnt. For the reasons given by us in the aforesaid paragraphs, "I have murdered the deceased persons" is inadmissible in evidence. The recovery memo of the articles is Exh. P-5, in which certain pieces of burnt saree, certain pieces of some metal and burnt melted pieces of some suitcases, clips etc. were seized. Since the articles which were seized are from the open place, nearby a jungle it is difficult to connect the appellant Vivek Bithle in the alleged crime. That apart, the articles were of deceased persons, there is no evidence of Ayodhya Prasad (P.W. 29), who is the father of first deceased Mukesh. That apart, if the melted pieces of suitcase and certain burnt pieces of saree were seized, with certainty it cannot be said that the belongings were of the deceased persons. 73. That apart, the articles were of deceased persons, there is no evidence of Ayodhya Prasad (P.W. 29), who is the father of first deceased Mukesh. That apart, if the melted pieces of suitcase and certain burnt pieces of saree were seized, with certainty it cannot be said that the belongings were of the deceased persons. 73. So far as the identification of the wallet of deceased Mukesh is concerned, the recovery memo of wallet is Exh. P-79, dated 16-11-2004, which was seized from the rear side of the house of Kalawati (P.W. 18) in an open place, which is accessible to public at large and it had no relevance. Further, the seizure of wallet from the rear side of the house of Kalawati (P.W. 18) has no relevance particularly when for more than one month another tenant was residing in the said house, as the appellant had already left the said premises on 13-10-2013. That apart, the wallet which was seized was not produced in the Court also. Further these articles were never seized from the disclosure statement of any of the appellant and they were recovered much prior to their arrest and therefore, this circumstance also does not connect the appellants in the alleged crime. 74. Thus, according to us, all the 15 circumstances which the prosecution has relied upon and which the learned Trial Court has found to be proved collectively are not forming a complete chain unerringly pointing out the guilt towards the appellants leaving behind no hypothesis as envisaged in the aforesaid decisions of the Supreme Court, which we have mentioned hereinabove. Hence, it becomes highly suspicious that the appellants have committed the said heinous crime including four murders of the deceased persons. According to us, if a person is made accused by framing charge of heinous offence, more strict degree of proof is required which is totally lacking in the present case. Therefore, we extend our benefit of doubt to the appellants. 75. We may further add that it is very unfortunate that appellants stood convicted for the offence of four murders by learned Trial Court and the severest penalty of death has been imposed on them. Therefore, we extend our benefit of doubt to the appellants. 75. We may further add that it is very unfortunate that appellants stood convicted for the offence of four murders by learned Trial Court and the severest penalty of death has been imposed on them. Since the date of their arrest (first appellant Vivek Bithle was arrested on 20-11-2004 and second appellant Sunil Bithle was arrested on 21-11-2004), i.e., fore more than 9 years the appellants are continuously in jail and result of the trial is culminated into severest punishment of death and they have suffered mental trauma only on the basis of conjectures, surmises and suspicion. The stigma of murder of four persons they are carrying with them for such a long period, we hope and trust that this judgment will remove the social stigma and their accusation in such a heinous crime. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is set aside and the appellants are acquitted from all the charges. They are in jail, they be set at liberty forthwith, if not required in any other case. The death reference sent by learned First Additional Sessions Judge, Balaghat under Section 366, Cr.PC. is accordingly answered. Let a copy of this judgment be kept in the record of death reference.