JUDGMENT 1. - Present appeal has been preferred by accused appellant Sher Singh, S/o Juglal, R/o Chhoti Dhani Jhajhadiya, Police Station Hamirwas, Churu, by assailing the judgment dated 28.4.2004 rendered by the learned Additional Sessions Judge (Fast Track), Churu, whereby the appellant has been held guilty of the offence under Section 302 I.P.C. along with the order of sentence of even date, whereby he has been sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- and in default, to further undergo simple imprisonment for six months. 2. As per the prosecution case, the appellant Sher Singh had murdered Dev Karan. Evidence of PW-16 Karan Singh Yadav revealed that on 29.12.2003, he was posted as S.H.O., P.S., Hamirwas, At about 11.15 A.M., he had received a telephonic information that Dev Karan was murdered in village Kanawasi. Upon receipt of the information, the S.H.O. along with companion Police Officials in a Govt. Jeep reached Kanawasi, where Mohar Singh, elder brother of deceased Dev Karan made a written report Ex.P-1 3. In the report Ex.P-1, Mohar Singh, PW-1, stated that he is a resident of Kanawasi, Appellant Sher Singh, who is brother-in-law of Jai Singh, resident of village Kanawasi, was residing in the same village with Jai Singh from last six months. It was further stated that on 28.12.2003, his brother deceased Dev Karan alongwith Ranveer Singh S/o Hanuman Ram had gone to work in the fields and in evening, had returned home. Mohar Singh, PW-1, was informed next day morning by Bhateri, PW-6, wife of Dev Karan, that on the previous night at about 10 P.M., present appellant came and Dev Karan, on asking of the appellant, had accompanied him. When she questioned where her husband was being taken, appellant Sher Singh replied that there was some work. According to PW-6 Bhateri, thereafter, her husband Dev Karan had not returned. Later on, it was told to her by Ramesh S/o Richhpal that at about 10 P.M. in the night, he had seen Sher Singh along with Dev Karan going towards western side of the village. After some time, Ram Niwas S/o Chet Ram disclosed that Dev Karan was lying murdered in front of his house and he had sustained multiple injuries on his head. Mohar Singh, PW-1, along with Bhanwar Singh Rajput and Nandu Ram Jat went to the spot and found Dev Karan dead. After some time, Ram Niwas S/o Chet Ram disclosed that Dev Karan was lying murdered in front of his house and he had sustained multiple injuries on his head. Mohar Singh, PW-1, along with Bhanwar Singh Rajput and Nandu Ram Jat went to the spot and found Dev Karan dead. According to Mohar Singh, PW-1 his brother deceased Dev Karan had been murdered by Sher Singh with brickbats or stones. 4. As per the prosecution case, the occurrence in the present case had taken place on 28.12.2003 at about 10/11.00 P.M. and Mohar Singh, PW-1, had made a report on arrival of the police in pursuance of the telephonic information on 29.12.2003 in the wee hours at about 12.15 A.M. 5. The aforesaid F.I.R. Ex.P-1 was investigated. A report under Section 173 Cr.P.C. was submitted and the case was sent for trial. The case was then committed to the Court of Sessions and was entrusted for trial to the Court of learned Addl. Sessions Judge (FT), Churu. The prosecution, in all, had examined 16 witnesses. 6. To prove that Dev Karan was murdered and had received fatal injuries on the head, the prosecution examined PW-8 Dr. Rajkumar Sarraf. This witness stated that on 29.12.2003, at about 4.30 P.M. he had conducted autopsy on the dead body of Dev Karan, aged about 40 years. He stated that small intestines of the deceased contained semi digested food, whereas the large intestines contained fecal matter. Three injuries were found on the person of deceased. Injury No. 1 was two abrasive contusions measuring ½" x ½" on right clavicular region. Injury No. 2 was swelling on the right side of the face; there was abrasion measuring 1" x ½" right eye was contused and swollen and blood was oozing out of the right eye. Injury No. 3 was swelling on the frontal, parietal and temporal region of the head; Clotted and fluid blood was present between the right side skull bones and cerebral membranes. All the injuries were ante mortem in nature. As per the opinion of this witness, deceased Dev Karan died due to coma resulting from head injury, which was sufficient to cause death in the ordinary course of nature. The injury could be caused by a blow of brickbat. The duration of the injuries was 12 to 24 hours prior to the post mortem. 7. As per the opinion of this witness, deceased Dev Karan died due to coma resulting from head injury, which was sufficient to cause death in the ordinary course of nature. The injury could be caused by a blow of brickbat. The duration of the injuries was 12 to 24 hours prior to the post mortem. 7. As stated earlier, Mohar Singh, PW-1, gave the written statement Ex.P-1 on the basis of the information gathered by him from Bhateri PW-6, Ramesh PW-2 and Ram Niwas PW-3. In his cross examination, this witness admitted and said, "I had not seen Sher Singh killing Dev Karan". This witness has stated in his examination in chief that where the deceased was lying dead, brickbats were lying there. In his presence, the police had prepared site plan Ex.P-4 and Panchayat Nama Ex.P-3. 8. PW-2 Ramesh Kumar, who is the nephew of deceased Dev Karan and Mohar Singh, PW-1, stated that on 28.12.2003, he had seen Dev Karan along with Sher Singh, when he was going towards his field and at that time, it was 10 P.M. They were going towards the western side, thereafter, his uncle Dev Karan had not returned. He disclosed this fact to Mohar Singh, PW-6, next day morning. 9. PW-3 Ram Niwas S/o Chet Ram stated that on 29.12.2003 when he woke up in the morning, he was informed by Ram Niwas S/o Nandlal that a person was lying dead in front of his house. He identified the person lying dead as Dev Karan and informed his elder brother Mohar Singh accordingly. This witness has stated that he had heard "Sher Singh had killed Dev Karan. 10. PW-4 Nandu Ram stated that he had learnt that Dev Karan had been murdered and his dead body was lying in front of the house of Ram Niwas, PW-3. 11. To the similar effect is the statement of Ram Niwas S/o Nandlal, PW-5. This witness further stated that he had informed Ram Niwas S/o Chet Ram, PW-3 regarding the person lying dead in front of his house. 12. PW-6 Bhateri W/o deceased Dev Karan stated that her husband had returned from the fields at about 6 P.M. He after taking his meals, had retired to bed. This witness further stated that he had informed Ram Niwas S/o Chet Ram, PW-3 regarding the person lying dead in front of his house. 12. PW-6 Bhateri W/o deceased Dev Karan stated that her husband had returned from the fields at about 6 P.M. He after taking his meals, had retired to bed. When at about 10/10.30 P.M., Sher Singh arrived at their home and called Dev Karan, she questioned him as to why her husband was being taken, Sher Singh replied that there was some work. According to this witness, her husband had left with Sher Singh and, thereafter, did not return. In the next day morning, she informed Mohar Singh, PW-1, elder brother of her husband regarding non-return of Dev Karan. Thereafter, she learnt that Dev Karan was lying dead in front of the house of Ram Niwas S/o Chet Ram, PW-3. 13. PW-7 Bajranglal is a witness to the seizure of clothes of the deceased at the hospital. 14. PW-9 Birbal claims himself to be an eye witness of the occurrence. This witness has stated that two months ago, he had gone to Rajgarh, where he missed the bus for going to his village, as it had become dark. At about 8.30 P.M., he had boarded a jeep from Raigarh and alighted at Bairasar Bada and from there, for going to his village, he had to pass through village Kanawasi. He started walking on foot. When he reached near Kanawasi, the whole village was asleep. While passing through the village, he found Dev Karan and Sher Singh. Sher Singh was having a brickbat in his hand and he gave a brickbat blow on the head of Dev Karan. On asking by this witness, Sher Singh told him to remain silent, otherwise, he shall be similarly dealt with, upon which this witness had gone to his village. This witness stated that he had seen the occurrence at about 10.45/11.00 P.M. Next day, he heard that Dev Karan has been killed. At around 3.00, he came to village Kanawasi. He went to the house of Ramesh and told him that Dev Karan has been killed by Sher Singh. Thereafter, he returned to his village. In the cross-examination, attention of this witness was drawn to his police statement, where material parts of his examination-in-chief were not recorded. At around 3.00, he came to village Kanawasi. He went to the house of Ramesh and told him that Dev Karan has been killed by Sher Singh. Thereafter, he returned to his village. In the cross-examination, attention of this witness was drawn to his police statement, where material parts of his examination-in-chief were not recorded. The witness had made various improvements and the could not offer any explanation as to why he had not disclosed to the police that he had left the village Rajgarh in a jeep at about 8.30 P.M. He again stated that he had no knowledge as to why the police had not recorded that Dev Karan and Sher Singh were having an altercation. He further stated that he had disclosed before the police that the accused had warned him to remain silent, otherwise he would be similarly dealt with, but as to why this portion was not recorded in his police statement, this witness could not offer any explanation. This witness further stated that on the next day, he had gone to village Kanawasi to meet Ramesh at 3 P.M. and disclosed him about the entire occurrence. The witness again, was at loss of words as to why this was not recorded by the police in, his, police statement. This witness stated that he had gone to Rajgarh to purchase tea leaves and sugar. He had reached Rajgarh at about 12 Noon. He purchased two kilograms each of tea leaves and sugar. However, he could not account for any cash memo. This witness stated that after purchasing the goods, he had gone to the house of legislator Nandlal Punia. He waited for him and then returned. This witness further divulged that two years ago, his right eye was operated of cataract. This witness further admitted that his eye sight from left eye is weak. It was stated by the witness, "Dev Karan in relation was my brother and I often used to visit his house". Further more, this witness had admitted and said, "the Police has recorded my statement after five days of the occurrence". This witness denied the suggestion that he has falsely deposed against the accused at the instance of relations of the deceased Dev Karan. 15. PW-10 Durga Prasad, PW-11 Rajendra Singh, PW-12 Dharmendra and PW-13 Amar Singh were examined to prove link evidence. 16. This witness denied the suggestion that he has falsely deposed against the accused at the instance of relations of the deceased Dev Karan. 15. PW-10 Durga Prasad, PW-11 Rajendra Singh, PW-12 Dharmendra and PW-13 Amar Singh were examined to prove link evidence. 16. PW-14 Suresh was examined by the prosecution to prove extra judicial confession made by accused. This witness stated that on 29.12.2003 at about 4.30 P.M., he had gone to village Jhumpa, where Sher Singh met him at the bus stand and demanded a sum of Rs. 20/- to consume liquor and upon his refusal, the witness stated, "I have finished your maternal uncle and I will do the same to you". After saying this, the accused had left. The witness on the next day i.e. 30.12.2003 learnt that his maternal uncle has been finished. 17. PW-15 Dharampal Singh was the Malkhana In-charge of the Police Station, Hamirwas, at the relevant time, who got deposited the sealed articles in the Forensic Science Laboratory along with foot moulds through F.C. Durga Prasad. 18. PW-16 Karan Singh Yadav, S.H.O., P.S., Hamirwas, proved various facets of investigation including the presence of foot prints at the place of occurrence, recovery of "Chapals" of the deceased at the place of occurrence and brickbats from the scene of the occurrence. This witness further stated that accused Sher Singh was arrested, thereafter, he voluntarily took the Investigating Agency to the place of occurrence and got the clothes, stained with blood, recovered in pursuance of the disclosure statement. Further more, he had prepared special foot moulds of left and right shoe of the accused with plaster of paris. Investigating Officer identified article No. 1 i.e. blanket, which was found on the dead body of deceased Dev Karan; article No. 2 i.e. shirt of deceased Dev Karan and article No. 3 i.e. "Paijama" of deceased Dev Karan along with "Hawai Chappal" (article No. 4). He also proved article No. 8 i.e. shirt stained with blood, which was worn by the accused at the time of occurrence. This witness further stated that during investigation, he learnt that present appellant, prior to this occurrence, was involved in two cases of murder, one of causing hurt and other of theft. 19. After prosecution had closed its evidence, the statement of the accused was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances and pleaded false implication. This witness further stated that during investigation, he learnt that present appellant, prior to this occurrence, was involved in two cases of murder, one of causing hurt and other of theft. 19. After prosecution had closed its evidence, the statement of the accused was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances and pleaded false implication. He stated that Bhateri, PW-6, wife of deceased was having illicit relations with PW-3 Ram Niwas. On the day of occurrence, deceased had sent him for bringing their meals from his (deceased) house, where he found PW-3 Rani Niwas. Upon disclosing as to presence of Ram Niwas in his (deceased) house, deceased Dev Karan had told him on the day of occurrence that he will finish PW-3 Ram Niwas. The accused further stated that he was being falsely implicated to cover up the crime on the part of Bhateri, PW-6 and PW-3 Ram Niwas. No witness was examined by the accused in his defence. 20. From the entire case of the prosecution, following incriminating circumstances, emerge against accused appellant Sher Singh: (i) Evidence of last scene, which has come in the statement of Bhateri, PW-6 and Ramesh, PW-2; (ii) Evidence of eye witness Birbal, PW-9, who had allegedly witnessed the occurrence; (iii) Evidence of extra judicial confession, which has emerged in the testimony of Suresh, PW-14; (iv) Recovery of blood stained shirt, worn by the accused, in pursuance of the disclosure made by him; (v) Lifting of foot prints from the place of occurrence; preparation of the foot moulds of the shoes worn by the accused; and tallying of the specimen foot moulds with the foot moulds gathered from the spot as per the report of the F.S.L., Ex.P-43. 21. The trial Court has disbelieved the evidence of the extra judicial confession. 21. The trial Court has disbelieved the evidence of the extra judicial confession. The Court below has discarded the testimony of PW-14 Suresh by observing at page 16 of the judgment as under: " ih0MCY;w0 14 lqjs'k us ;g lk{; nh gS fd 29-12-2003 dks og fnu ds lk<+s pkj cts >awik vk;k gqvk Fkk rc 'ksjflag gkftj vnkyr mls cl vM~Ms ij feyk FkkA mlus mlls 'kjkc ds fy;s :i;s ekaxs Fks mls dgk fd 15&20 :i;s ns ns rks mls :i;s ugha fn;s rks mls dgk fd mlds ekek dk dke rks dj vk;k vkSj mldk vksj dj nsxkA mls dgk fd mlds ekek dk dke rks dj vk;k gSA xokg us lk{; nh gS fd fQj og dkukoklh vk;k tks fnukad 30-12-2003 dks vk;k rks mls irk pyk fd mldk ekek [kRe gks x;k ftldks 'ksjflag us [kRe fd;k FkkA bl xokg ds le{k vfHk;qDr }kjk v)Z&Ukf;d laLohd`fr djuk dFku fd;k gSA bl xokg ds iqfyl c;ku esa bl xokg us 'ksjflag }kjk mlds ekek dks ekjuk dFku fd;k gS tcfd U;k;ky; ds c;kuksa esa ekjuk ugha vk;k gSA ;g xokg e`rd nsodj.k dk HkkUtk gSA bl xokg ds c;kuksa esa ekjuk ugha vk;k gSA ;g xokg e`rd nsodj.k dk HkkUtk gSA bl xokg ds iqfyl c;ku fnukad 3-1-2004 dks fy;s x;s gSaA fnukad 29-12-2003 dks v)Z&Ukf;d laLohd`fr dh tkudkjh gksus ds ckotwn Hkh bl xokg }kjk vius fudV fj'rsnkjksa dks bl ckjs esa ugha crkuk rFkk iqfyl dks bfRryk ugha djuk bl xokg dk vizkd`frd vkpj.k gSA lkekU;r% dksbZ Hkh vfHk;qDr e`rd ds fj'rsnkjksa ds le{k v)Z&Ukf;d laLohd`fr ugha djrk gSA v)Z&Ukf;d laLohd`fr vius fe= ;k fudV fj'rsnkjksa ds le{k gh vfHk;qDr djrk gSA ;g ekuus ;ksX; ugha gS fd vfHk;qDr us e`rd ds HkkUts ih0MCY;w0 14 lqjs'k ds le{k v)Z&Ukf;d laLohd`fr dh gksA vr% bl izdj.k esa v)Z&Ukf;d laLohd`fr dh lk{; lansg dh lhek ls ijs fl) ugha gqbZ gSA bl xokg us ftjg esa jkefuokl o Hkrsjh }kjk vius ekek dks ekjuk xyr dFku fd;k gSA bl xokg dh lk{; ds vk/kkj ij vfHk;kstu i{k dh v)Z&Ukf;d laLohd`fr dh dgkuh ekuus ;ksX; ugha gSA " 22. The reasons given by the trial Court in the above-said portion reproduced, being cogent and convincing, are hereby affirmed. 23. The reasons given by the trial Court in the above-said portion reproduced, being cogent and convincing, are hereby affirmed. 23. So far as the evidence of PW-9 Birbal, who claims himself to be eyewitness, is concerned, in our opinion, he is made up witness, being relation of the complainant and the deceased. The evidence of this witness is improbable, unnatural and un-convincing and hence, the learned trial Court committed grave error in relying upon the testimony of this witness. This witness has not only made material improvements from the statement made to the police but, he, after having seen the occurrence, without any protest and murmur or disclosing the incident to anybody, had gone to his village. The witness in order to probabilize his conduct, has deposed in the Court that on the next day of occurrence, he came to the village of the deceased and disclosed the occurrence to his nephew Ramesh. This fact was not stated by the witness in his police statement. Further more, statement of this witness was recorded by the police after five days of the occurrence. For a good period of five days, nowhere the name of the witness surfaced in the investigation. What prompted the witness to make a statement after five days of the occurrence, no cogent explanation is coming forth. The witness claims himself to be the relation of the deceased. He has admitted that he often used to go to the house of the deceased and was on the visiting terms with him. This explains the reason as to why the witness has come forward to depose against the accused by becoming an eye-witness. This witness was lending authenticity to the suspicion expressed by deceaseds brother viz; Mohar Singh (PW-1). Further more, the fact that the witness had neither intervened at the time of occurrence nor had informed about the occurrence promptly to any body, is sufficient for us to discard the evidence, as his conduct was improbable and unnatural. This witness was lending authenticity to the suspicion expressed by deceaseds brother viz; Mohar Singh (PW-1). Further more, the fact that the witness had neither intervened at the time of occurrence nor had informed about the occurrence promptly to any body, is sufficient for us to discard the evidence, as his conduct was improbable and unnatural. It is too difficult for us to believe that the witness was present at the nick of the moment to witness the occurrence.Having discarded the evidence of extra judicial confession and testimony of the eye-witness, this Court is left with evidence of last seen, foot moulds and recovery of shirt worn by the accused, which was having blood stains.As per the report submitted by the State Forensic Science Laboratory for Rajasthan, Ex.P-37, the shirt worn by the accused was having blood stains of human origin but the Deputy Director (Serum), Regional F.S.L., has stated that the blood group on the clothes of the deceased and the accused could not be determined.It has been held by the Hon'ble Apex Court in the case of Kansa Behera v. State of Orissa reported in AIR 1987 SC 1507 that till the prosecution proves blood group on the clothes, mere presence of blood stains on the clothes will not be sufficient to draw an adverse inference against the accused appellant. It will be apposite to reproduce following para from the judgment rendered in Kansa Behera's case (supra): "11. As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist reports were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and, therefore, it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. Few small blood stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn." We also fail to understand as to why the accused kept his shirt, allegedly stained with blood, concealed for a long period. The occurrence had taken place on 28.12.2003. The accused was arrested on 31.12.2003 at 9 P.M. and his shirt was recovered on 1.3.2004. The first reaction of the accused must have been to destroy the clothe, which could be used against him, instead of keeping the same safe to be used against him later. Be that as it may, lack of blood group of the blood stains on the shirt is sufficient to rule out this piece of evidence out of consideration in view of the observations made by the Hon'ble Apex Court in the case of Kansa Behera (supra).In Niranjan Lal v. State of Haryana, 1955 Cri.L.J. 248 , the Division Bench of the Punjab and Haryana High Court relying upon the case of Chandran Surendran v. State of Kerala, 1990 Cri.L.J. 2296 , held that the science of identification of root prints is a rudimentary science and much reliance cannot be placed on the result of such identification.To the similar effect, observations were made by the Hon'ble Apex Court in Mohd. Aman v. State of Rajasthan, AIR 1997 SC 2960 , wherein it was further held that in case., sample foot prints were not taken before a Magistrate, it is unsafe to accept evidence of foot prints. In Mohd. Aman's case (supra), it was held as under: "9. xxxxx So far as the foot prints are concerned, another reason for which we fell it unsafe to accept the evidence let in this regard is that the sample foot prints were not taken before a Magistrate. In Mohd. Aman's case (supra), it was held as under: "9. xxxxx So far as the foot prints are concerned, another reason for which we fell it unsafe to accept the evidence let in this regard is that the sample foot prints were not taken before a Magistrate. This apart the science of identification of foot prints is not a fully developed science and, therefore, if in a given case-unlike the present one-evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence". A Division Bench of this Court in Leela Ram and Ashok v. State of Rajasthan, 2008 Cri.L.J. 1775 , also held that where foot impression moulds were not taken before or under the orders of a magistrate, they cannot be accepted in evidence.Therefore, in the present case also, since sample of the shoes, worn by the accused, was not taken in the presence of a magistrate, we tend to ignore this piece of evidence, as the science of comparison of foot prints is not perfect.As per the F.S.L. Report, Ex.P-43, four plaster of paris moulds allegedly lifted from the scene of occurrence were received. AS per result of the examination, foot wear impression reproduced in the mould-A, mould mark X-1/1 and mark X-1/II tallied with the shoe exhibit 1-L i.e. shoe worn by the accused, whereas other three moulds had not tallied with the shoes, worn by the accused. In view of this, it cannot be said that from the report, conclusive inference case be drawn that it was the accused alone, who was present at the place of occurrence. At least three moulds, which were lifted from the spot, belonged to different persons.Having discarded the evidence of eye witness PW-9 Birbal, accepting findings of trial Court to disbelieve the testimony of Suresh PW-14 witness of extra judicial confession, ruling out the evidence of blood stains on the shirt and foot moulds from consideration, this Court is left with evidence of last seen.Even if we believe the evidence of last seen as divulged by Bhateri PW-6 and PW-2 Ramesh, it is not sufficient to sustain conviction of appellant. Evidence of last seen alone, is not sufficient to come to the conclusion that the chain of circumstances is so complete as to hold that no other person except the appellant had committed the offence.As a result of the above discussion, we are of the view that the prosecution has not conclusively proved its case against the appellant.Consequently, we extend the benefit of doubt to the appellant Sher Singh and acquit him of the charge by accepting the present appeal. Appellant Sher Singh shall be released forthwith, if not required in any other case.Appeal allowed. *******