JUDGMENT : Hon'ble AHLUWALIA, J.—By this common judgment, we shall decide both D.B. Criminal Appeal No.1742/2007 preferred by Manmohan, accused-appellant, and D.B. Criminal Appeal No.1861/2007 instituted by Netram, accused-appellant. 2. Both the appellants have been convicted by the court of Additional Sessions Judge (Fast Track) No.2, Jaipur City vide judgment dated 28.9.2007 for offences punishable under Sections 302/34, 364/34, 394/34 and 201/34 IPC. Having convicted the appellants for above offences, vide a separate order of even date, the appellants were sentenced as under:- U/S.302/34 IPC - life imprisonment and pay a fine of Rs.20000/- each in default thereof, to undergo simple imprisonment for one year. U/s.364/34 IPC – 10 years rigorous imprisonment and pay a fine of Rs.10,000/- each in default thereof, to undergo simple imprisonment for six months. U/s.394/34 IPC – 10 years rigorous imprisonment and pay a fine of Rs.10,000/- each in default thereof, to undergo simple imprisonment for six months. U/s.201/34 IPC - 5 years simple imprisonment and pay a fine of Rs.1000/- each in default thereof, to undergo simple imprisonment for two months. 3. After prosecution evidence was recorded, Hemraj, co-accused of the appellants, deserted the trial and was declared proclaimed offender. Subsequently, he was apprehended and vide a separate judgment dated 1.5.2009 he was also convicted for offence under Sections 302/34, 364/34, 394/34 and 201/34 IPC and vide separate order dated 2.5.2009, he was sentenced as under:- U/S.302/34 IPC - life imprisonment and pay a fine of Rs.20000/- each in default thereof, to undergo simple imprisonment for one year. U/s.364/34 IPC – 10 years rigorous imprisonment and pay a fine of Rs.10,000/- each in default thereof, to undergo simple imprisonment for six months. U/s.394/34 IPC – 10 years rigorous imprisonment and pay a fine of Rs.10,000/- each in default thereof, to undergo simple imprisonment for six months. U/s.201/34 IPC - 5 years simple imprisonment and pay a fine of Rs.1000/- each in default thereof, to undergo simple imprisonment for two months. 4. The prosecution evidence qua all the three appellants is same and only defence evidence is different so far accused Hemraj is concerned. He examined one witness in his defence, hence, we will decide his appeal by delivering a separate judgment. 5. Smt. Indira Devi (P.W.7), wife of the deceased, Krishna Murari Sharma, submitted a written report (Ex.P.17) on 29.5.2005 before Ram Singh (P.W.41), In-charge, Police Station Shipra Path, Jaipur. He examined one witness in his defence, hence, we will decide his appeal by delivering a separate judgment. 5. Smt. Indira Devi (P.W.7), wife of the deceased, Krishna Murari Sharma, submitted a written report (Ex.P.17) on 29.5.2005 before Ram Singh (P.W.41), In-charge, Police Station Shipra Path, Jaipur. The written report when translated into English, reads as under:- To, The SHO, Police Station Shipra Path, Jaipur City, South, Jaipur. Sub.: Regarding kidnapping of husband. Sir, In respect of above subject, it is submitted that my husband Krishna Murari Sharma, presently resident of House No.35, Dadu Dayal Colony, New Sanganer Road, on 17.5.2005 after taking booking from Vashistha Travel Agency, Vijay Path Crossing, had taken Taxi No.RJ-14-T-8314 (Tavera) for Sikandara. He was having mobile No.9414405702. Till today, I have not received any information regarding his whereabouts. We have searched for him at all places. But till today, no clue has been found. We have a suspicion that he has been kidnapped by somebody. I am making report. Necessary action be taken. 5. On the basis of above said written report, formal FIR (Ex.P.63) was registered at Police Station Shipra Path, Jaipur for offence under Section 365 IPC. 6. On 23.5.2005 at about 9.30 A.M. dead body of unidentified person was recovered from the well of Mool Singh Rajpoot in the revenue estate of Village Nadoti falling within the territorial jurisdiction of Police Station Nadoti, District Karauli. The dead body had decomposed in water. Both hands were swollen. The skin had peeled off. Regarding recovery of dead body, memo (Ex.P.1) was prepared by the SHO, P.S. Nadoti at the place of recovery on 23.5.2005 at 9.30 A.M. in presence of two witnesses, namely Rohitash (P.W.1) and Dharam Singh @ Dharmendra Singh (P.W.3). 7. After recovery of dead body, aggravated offences were added. Investigation concluded and report of investigation under Section 173 Cr.P.C. was submitted along with three accused, namely Manmohan, Netram and Hemraj, who had later deserted the trial. The court of Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur charged the appellants for different offences on four counts. 8. The first charge stated that accused on 17.5.2005 had abducted/ kidnapped Krishna Murari and thus committed substantively offence under Section 364 or in the alternate, under Section 364/34 IPC. The court of Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur charged the appellants for different offences on four counts. 8. The first charge stated that accused on 17.5.2005 had abducted/ kidnapped Krishna Murari and thus committed substantively offence under Section 364 or in the alternate, under Section 364/34 IPC. The second charge stated that on 17.5.2005, the appellants had hired a Tavera vehicle bearing registration No.RJ14-T-8314 from Jaipur for going to Sikandara after booking the same. The driver of the said vehicle was Krishna Murari. He was murdered between 17.5.2005 to 23.5.2005 and after murder, his vehicle was taken away by the accused. Hence, they had committed substantively offence under Section 394 and in the alternate, under Section 394/34 IPC. The third charge stated that between 17.5.2005 to 23.5.2005 the accused-appellant had murdered Krishna Murari Sharma and thus, had committed substantively offence under Section 302 or in the alternate, under Section 302/34 IPC. Lastly, for disappearance of evidence relating to murder, the appellants were charged substantively for offence punishable under Section 201, or in the alternate, under Section 201/34 IPC. 9. The appellants pleaded not guilty and claimed trial. 10. The prosecution in all had examined 46 witnesses and had proved 90 documents which were exhibited as Exhibit-P.1 to Exhibit-P.90. Rohitash (P.W.1) stated that on 23.5.2005, he had attested recovery memo of dead body (Ex.P.1). He had also attested inquest report (Ex.P.2). This witness further stated that vide memo (Ex.P.3), one pant, shirt, vest and stone weighing about 15-20 Kg. were also taken into possession by the police. The witness also proved Exhibit-P.4, the site plan of the spot from which dead body was recovered. In cross-examination, this witness stated that dead body was not identifiable as same was decomposed. He further stated that nose of the deceased was disfigured, eyes were protruding out and face was blackened. Shiv Dayal (P.W.2) stated that on 22.5.2005 when he was posted as Constable at Police Station, Nadoti, a telephonic information was received that one dead body has been found in a well. The well belonged to Phool Sing Rajpoot. Upon receipt of information, the SHO had left for the spot along with Hariram, Mukesh, Phool Singh, Pratap and Mohan Singh. They reached at the well around 7.30 P.M.. It was dark. Therefore, the dead body could not be taken out. The well belonged to Phool Sing Rajpoot. Upon receipt of information, the SHO had left for the spot along with Hariram, Mukesh, Phool Singh, Pratap and Mohan Singh. They reached at the well around 7.30 P.M.. It was dark. Therefore, the dead body could not be taken out. On the next day morning, i.e. dated 23rd, dead body was taken out of the well. He further stated that people had gathered there. They could not identify the dead body. Deceased was aged about 30 years and photographs of spot and the dead body were also taken. Dharmendra Singh (P.W.3) had also attested the recovery memo (Ex.P.1) by which dead body was taken into possession by the police. He had also attested inquest memo (Ex.P.2) and the memo regarding recovery of clothes of deceased and of stone weighing 10-15 Kg. Hemraj Meena (P.W.4) stated that in his presence, Netram was arrested. He had attested arrest memo (Ex.P.5). As per arrest memo, Netram was arrested on 28.6.2005 at 4.30 P.M. In presence of the witness, accused got recovered key of Tavera vehicle. The same was taken into possession vide memo (Ex.P.6). Besides this witness, recovery memo (Ex.P.6) of key of Tavera vehicle No.RJ14-T-8314 was also attested by Satyanarain (P.W.8). In cross-examination this witness stated that he was called by police of Police Station Shipra Path. He normally used to go to the police station. This witness denied the suggestion that as Netram belonged to Congress party and he was worker of BJP, due to this grudge, he has falsely deposed against Netram. This witness stated that on 2nd June he had gone to police station at his own. Mohan Lal (P.W.5) stated that on 2.6.2005, he along with police personnel, Smt. Indira Devi, Ram Rai and Hemraj had gone to police station Nadoti. Police of P.S. Nadoti had shown clothes and photographs of the deceased. From the photographs, Indira Devi recognized the deceased to be her husband, Krishna Murari. Regarding identification of dead body from photograph and clothes of deceased, Memo (Ex.P.8) was prepared. The witness further stated that he had seen photographs (Ex.P.9 to P.12) and negatives thereof (Ex.P.13 to P.16). This witness stated that he is resident of District Tonk. He had not gone to Police Station Nadoti after receiving any summon. He had reached police station in search of deceased, Krishna Murari. The witness further stated that he had seen photographs (Ex.P.9 to P.12) and negatives thereof (Ex.P.13 to P.16). This witness stated that he is resident of District Tonk. He had not gone to Police Station Nadoti after receiving any summon. He had reached police station in search of deceased, Krishna Murari. He was accompanied by Gyarsi Lal, Indira Devi, Hemraj and Ram Rai. In his cross-examination, this witness further stated that he knew Satyanarain S/o. Ram Kumar. Brajendra Singh (P.W.6) stated that on 23.5.2005, police had conducted inquest proceedings regarding unidentified body. He had attested the same. Smt. Indira Devi, complainant wife of deceased Krishna Murari Sharma, appeared as P.W.7. She stated that her husband was doing the work of driver. On 17.5.2005 at about 9.00 P.M. she received a telephonic call from her husband who informed that he after taking passengers, is going towards Sikandara. Her husband had not returned in the morning. He had not picked-up mobile phone as same was switched off. She waited for her husband for 3-4 days. Thereafter she asked for his whereabouts from the travel agency. Then she called Ram Rai, elder brother of her husband. Thereafter she went with Ram Rai to P.S. Shipra Path, there she presented the written report (Ex.P.17). She further stated that photographs (Ex.P.9 to P.10) were of her husband. Similarly photographs (Ex.P.11 and P.12) are also of her husband. She further stated that she had identified the clothes of her husband and his face. She further stated that police had shown photographs of her husband. She had identified her husband after seeing her clothes. Later she had identified the deceased on the basis of both clothes and photographs. She further stated that the fact that mobile phone of her husband was switched off was not written in the written report (Ex.P.17), submitted by her. Satyanarain (P.W.8) stated that he knew Krishna Murari for last 5-6 years. His conduct was good. He was a taxi driver. The witness was also driving taxi. On 17.5.2005 he was standing at Thadi Market. It was 8.00-9.00 P.M. Krishna Murari was leaving spot after taking his Tavera vehicle. He had given a signal by hand to Krishna Murari and asked him where he is going. He stopped the vehicle and disclosed to him the place of destination. In the said car, three persons were sitting. On 17.5.2005 he was standing at Thadi Market. It was 8.00-9.00 P.M. Krishna Murari was leaving spot after taking his Tavera vehicle. He had given a signal by hand to Krishna Murari and asked him where he is going. He stopped the vehicle and disclosed to him the place of destination. In the said car, three persons were sitting. Two persons were sitting on the back seat, whereas one person was sitting on front seat. The witness further stated that he can identify the occupants of the vehicle. The witness identified Man Mohan and Hemraj, who were present in the court, as the persons who were traveling in the vehicle. On that day, Netram had not appeared from Jail. Therefore, his identification in court was deferred. On the next date, when Netram was produced in the court, this witness also identified him. The witness proved identification memo qua Man Mohan as Ex.P.18, qua Hemraj as Ex.P.19 and qua Netram as Ex.P.20 respectively. In cross-examination, this witness admitted that he had accompanied Indira Devi to Police Station Nadoti. This witness admitted that he had not given any statement to Nadoti Police Station that he had seen the three accused traveling with Krishna Murari in Tavera vehicle on 17.5.2005. This witness further stated that he had made his statement to police after 8-10 days of occurrence. He further stated that in his statement he had not disclosed the features or identification marks of the accused. He had not received any summons from the Magistrate for identification of the accused. This witness further stated that Jai Vashistha had also gone along with him to identify the accused. However, they never had any conversation qua this aspect. He further stated that in identification parade, he was not asked as out of these accused, which accused was sitting at the front seat of the vehicle. Test identification was conducted on 6.7.2005 at Central Jail, Jaipur. Smt. Manbhari Devi (P.W.9) stated that she was owner of Tavera vehicle upon which Krishna Murari, deceased, was employed as a driver. She further stated that Krishna Murari had left for Sikandara after taking passengers. Thereafter he had not returned. All efforts were made to find out Krishna Murari. This witness after recovery of dead body had identified the clothes of the deceased. Jai Vashistha is another witness of test identification parade. He has appeared as P.W.10. She further stated that Krishna Murari had left for Sikandara after taking passengers. Thereafter he had not returned. All efforts were made to find out Krishna Murari. This witness after recovery of dead body had identified the clothes of the deceased. Jai Vashistha is another witness of test identification parade. He has appeared as P.W.10. He stated that he was having a travel agency in the name and style of Vashistha Tour & Travels at Vijay Path, Mansarovar. Krishna Murari Sharma was employed by him as a driver. He was a driver on Tavera which was of silver colour bearing registration No.RJ14-T-8314. This vehicle was in the name of wife of Suwa Lal. This witness stated that on 17.5.2005 a person named Kishan Kant came in his office. He was aged 20-25 years. He stated that for going to Sikandara, a vehicle is required. He demanded a car of large size for going to Sikandara. The witness asked the person whether he required a new vehicle, or a vehicle of large size. The said person replied that a car of large segment is required to return back with his family consisting of 8-10 person. It is stated that at that time Krishna Murari arrived there with the vehicle. He asked him whether he will go to Sikandara. On this, Krishna Murari, deceased, replied in affirmative and further stated that he has to return in the morning as he has to take passengers to Pali. This witness had demanded Rs.500/- as advance from the person who had come to hire the vehicle. The said person had given his address as 113/29, Agrawal Farm. The witness stated that the man who came to hire the vehicle came along with two other persons. The witness had prepared duty slip and handed over the same to the driver. It is stated that after that, all said three persons, had left in the vehicle driven by deceased, Krishna Murari. Krishna Murari had not returned. He assumed that he may have gone to Pali by taking passengers. However, another driver informed that Krishna Murari had not gone to Pali. Thereafter they had gone to the house of the party which had hired the vehicle. Accused who had given his name as Krishna Kant was not found there. Thereafter they contacted the wife of the deceased. He assumed that he may have gone to Pali by taking passengers. However, another driver informed that Krishna Murari had not gone to Pali. Thereafter they had gone to the house of the party which had hired the vehicle. Accused who had given his name as Krishna Kant was not found there. Thereafter they contacted the wife of the deceased. Later they lodged a report regarding missing of the vehicle and the driver. This witness in court identified Man Mohan as a person who had given him Rs.500/- as advance. This witness further stated that accused Man Mohan had disclosed his name as Krishna Kant. This witness had identified Netram, Hemraj and Man Mohan, who were present in the court, as the persons, whom he saw in his office. This witness had identified the accused in the Jail also. Mukesh Kumar (P.W.11) was posted as Constable. He stated that on 22.5.2005 he was posted as Constable at Nadoti. On that day at 6.30 P.M. he received a telephonic message from a journalist that he had received a telephone from an unknown person that dead body of an unknown person is lying in a well. This witness had testified recovery of dead body, recovery of clothes of deceased along with stone weighing 15 kg. which was tied along with accused with a Safi. Dr. S.S. Singh (P.W.12) had stated that on 23.5.2005, he had conducted autopsy upon dead body of an unidentified person. He further stated that on face and neck of the deceased some chemical was poured. According to the witness, trachea and larynx of the deceased were fractured and that decomposition of dead body had commenced. This witness further stated that as per opinion of the board which had conducted autopsy, death of the deceased had taken place between 18-20th November, 2005. Pratap Singh (P.W.13) was also posted as Constable at P.S. Nadoti and he had also attested the recovery of dead body and attested the memo qua the articles recovered from the spot. Netrapal (P.W.14) stated that on 19.6.2005 he was posted as Constable Clerk at P.S. Malpura. Vide a daily diary report, they had recovered Tavera vehicle without number plate in a deserted condition at Mehapur Railway Station near nursery. On the same day, police of Police Station Shipra Path approached and informed that a vehicle, Tavera, is required in a case. Netrapal (P.W.14) stated that on 19.6.2005 he was posted as Constable Clerk at P.S. Malpura. Vide a daily diary report, they had recovered Tavera vehicle without number plate in a deserted condition at Mehapur Railway Station near nursery. On the same day, police of Police Station Shipra Path approached and informed that a vehicle, Tavera, is required in a case. Malkhana In-charge, Head Constable had given supurdagi of vehicle to police of P.S. Shipra Path. Rakesh (P.W.15) stated that he had never seen the accused earlier. This witness was declared hostile by the prosecution. Similarly, his nephew Sanjay (P.W.16) also stated that accused were not known to him and this witness was also declared hostile by the prosecution. Tara Prakash Meena (P.W.17) had attested the arrest memos (Ex.P.26 and P.27) of accused Hemraj and Manmohan respectively by the police personnels of Police Station Shipra Path at 9.00 P.M. He had also attested the recovery memo of mobile (Ex.P.28). Ramgopal (P.W.18) stated that on 20.6.2005 he was posted as Constable at Police Station Shipra Path. He was present alongwith In-charge of police station. In presence of police officers, Hemraj and Man Mohan had disclosed that they had taken the deceased to Village Gadkheda in a deserted room in the field and there they had murdered him. It is stated that the Investigating Officer on the disclosure made by the accused, had prepared site plan of spot (Ex.P.29). It is further stated that accused Man Mohan had attested site plan of the spot (Ex.P.29) and Hemraj had attested site plan of the spot (Ex.P.30). Mohan (P.W.19) stated that he was a taxi driver. A year before police of Police Station Shipra Path consisting of 5-6 persons had taken two accused in a car towards Agra Road. At Mithakpur, accused told that they had parked a vehicle there. When they reached there, they had not found the vehicle and later learnt from the people that the vehicle was already taken into possession by P.S. Manpur, District Agra. This witness has also attested memo (Ex.P.29 and P.30) regarding disclosure made by the accused regarding spot where they murdered the deceased. Smt. Naina Devi (P.W.20) r/o. Malviya Nagar, Jaipur stated that she had rented out a house to accused, Hemraj @ Rs.920/- per month. She further stated that after few days, police came to her house. This witness has also attested memo (Ex.P.29 and P.30) regarding disclosure made by the accused regarding spot where they murdered the deceased. Smt. Naina Devi (P.W.20) r/o. Malviya Nagar, Jaipur stated that she had rented out a house to accused, Hemraj @ Rs.920/- per month. She further stated that after few days, police came to her house. They had thereafter broken the lock and opened the door of the room of Hemraj and had prepared some documents there. The witness identified Hemraj, present in the court, as person who had taken the house on rent. Gajanand (P.W.21) stated that he is a Pandit by profession and is resident of Malviya Nagar, Jaipur. Few days ago police came to Mandir of Sector 3, Malviya Nagar. At that time, one person was with them whose face was muffled. The said person went in a room and handed over some papers to the police. Police had prepared certain documents and also site plan. From which house the accused got the documents recovered is not remembered by this witness. He said that the house was somewhere behind the Mandir. The police had prepared memo (Ex.P.37) regarding recovery of documents of the vehicle and Ex.P.38 as site plan of the spot. Laxmi Chand (P.W.22) stated that in 2005 he was In-charge of police post falling within the jurisdiction of Malpura. On 19.6.2005, he had received a telephonic information that a vehicle was parked near the bushes in a deserted condition. Vide daily diary report, they had taken the vehicle into possession. The said vehicle was later taken by the police of P.S., Shipra Path. Bheela Singh (P.W.23) stated that one and a half years ago, police came along with two persons, one person was tall and another person was short statured. Their faces were muffled. They got identified the well. Those persons were telling the police personnel that they had thrown the dead body in the well. The said well was got identified from two accused. The police prepared the site plan of the spot. He had appended his signature thereupon. This witness further stated that memo (Ex.P.39) was attested by accused Man Mohan Soni also. Rajesh Choudhary (P.W.24) stated that in his presence, nothing was recovered. However, he admitted his signature on recovery memos, Ex.P.41 and Ex.P.42. The police prepared the site plan of the spot. He had appended his signature thereupon. This witness further stated that memo (Ex.P.39) was attested by accused Man Mohan Soni also. Rajesh Choudhary (P.W.24) stated that in his presence, nothing was recovered. However, he admitted his signature on recovery memos, Ex.P.41 and Ex.P.42. Suraj Mohan Kumawat (P.W.25) stated that on 30.6.2005 he had gone to the house of his friend in Pratap Nagar. Police was also standing there. The witness identified the accused Netram as one who was standing there along with police. It is stated that the accused got recovered a key of the vehicle which was taken into possession by the police. The accused also got recovered documents of the vehicle, Tavera, which included insurance of the vehicle as Ex.P.45, tourist permit as Ex.P.46, national permit as Ex.P.47, pollution control certificate as Ex.P.48, delivery note of vehicle as Ex.P.49, delivery card as Ex.P.50, cash receipt as Ex.P.51, receipts as Ex.P.52 and P.53. Suraj (P.W.25) stated that the police got recovered original registration certificate of the vehicle. He had seen the same and identified the same in the court as Ex.P.87 being photocopy of the original registration certificate. In cross-examination this witness stated that on 30.6.2005, he received information from Shipra Path police station that he had to witness some recovery. Chhitarmal (P.W.26) stated that about one and a half years ago, police was having one person with muffled face. He got number plate of the vehicle recovered vide memo (Ex.P.41). The number plate (Ex.P.42) was bearing number of the vehicle as RJ14-T-8314. Two number plates were taken into possession and the said number plates were marked as Articles-1 and 2. Witness also identified Article-3 being service book diary. Memo, Ex.P.41, was purportedly signed by accused Man Mohan. Ramesh Kumar Arora (P.W.27) stated that he is owner of house No.119/462, Agrawal Farm, Mansarovar. He had given a house on rent to Hemraj on 26th April. Accused Man Mohan used to reside with Hemraj in the said room. Besides them, another person also used to reside in the room. This witness again stated that on 30th May, the accused had vacated the premises. In cross-examination, this witness stated that he had not identified the accused before the Magistrate. Dinesh Kumar Sharma (P.W.28) stated that he was posted as Head Constable at P.S. Shipra Path. Besides them, another person also used to reside in the room. This witness again stated that on 30th May, the accused had vacated the premises. In cross-examination, this witness stated that he had not identified the accused before the Magistrate. Dinesh Kumar Sharma (P.W.28) stated that he was posted as Head Constable at P.S. Shipra Path. Narendra Singh and Rajendra Sharma had taken photographs of Tavera vehicle parked in the police station. Ram Bahadur Singh (P.W.29) also stated that he was posted as Head Constable at police station. On 8.7.2005, police had taken photographs and the chance prints of Tavera vehicle. Amit Kumar (P.W.30) had appended signature upon Exhibit-P.56. Police had recovered bill of purchase of Nokia mobile purchased by the deceased Krishna Murari Sharma. Himanshu Sharma (P.W.31) proved purchase of sim card by accused Hemraj by giving a fake driving license. Jagdish Prasad (P.W.32) stated that he was posted as Head Constable at Police Station, Shipra Path. He stated that he along with Investigating Officer had gone to the spot where the accused after taking Tavera Car had committed murder of its driver. He stated that the place of occurrence was got identified by Netram vide memo (Ex.P.35) and the site plan of the spot (Ex.P.36) was also attested by him. Gopal Singh (P.W.33) stated that he was posted at Ganesh Filling Petrol Pump and he had no information whether any accused person ever came to the petrol pump for taking petrol. This witness had not identified the accused and was declared hostile by the prosecution. Ghanshyam Sharma (P.W.34) stated that at the crossing of Vijay Path, he is having a STD/PCO both for last 16 years. He and his wife used to manage the said PCO. During lunch time, his wife used to sit in the PCO. This witness stated that on 17.5.2005 a person came to his shop for booking a vehicle. This witness further stated that after few days, the police officers of P.S. Shipra Path came and they had taken details of phone calls. Since he used to keep details, he handed over the same to the police. However, the witness stated that he cannot identify Netram, Hemraj or Man Mohan as a person who made telephonic call from his STD/PCO. Ramdayal Singh (P.W.35) stated that he was doing work of photography and was running a studio, named Raj Photo Studio at Bus Stand, Nadoti. However, the witness stated that he cannot identify Netram, Hemraj or Man Mohan as a person who made telephonic call from his STD/PCO. Ramdayal Singh (P.W.35) stated that he was doing work of photography and was running a studio, named Raj Photo Studio at Bus Stand, Nadoti. He had proved photographs of the dead body (Ex.P.9 to P.12) and negatives (Ex.P.13 to Ex.P.16). Hari Charan (P.W.36) stated that on 6.8.2005 he was posted as ASI, P.S. Shipra Path, Jaipur. Under the direction of SHO, he had registered a Case No.194/05 for offence under Sections 394, 364, 302, 201 IPC. He had also recorded statement of the witnesses which he later handed over to the Investigating Officer. Sitaram Sharma (P.W.37) stated that deceased, Krishna Murari Sharma, was his elder brother. He was plying a vehicle as driver in Jaipur. The witness was informed by his Bhabhi that 2-3 days before Krishna Murari had taken a vehicle, but not returned. He along with his wife searched for 10-15 days. Thereafter they lodged a report at the police station. After some days dead body of his brother was recovered from a well at Nadoti. He also handed over bill of mobile purchased by his brother (Ex.P.57). Narendra @ Kalu (P.W.38) stated that he was having a shop for doing service of gas stove. This witness was declared hostile as he has not supported the prosecution case. Poonam Chand Meena (P.W.39) stated that he had never facilitated taking of room on rent by Hemraj. This witness was also declared hostile by the prosecution. Anil Kumar (P.W.40) was also declared hostile by the prosecution. He stated that he never handed over mobile to accused, Hemraj. Ram Singh (P.W.41) stated that on 29.5.2005, he was posted as SI/Incharge, P.S. Shipra Path. On that day at 8.50 P.M. Indira Devi had presented a written report (Ex.P.17) on the basis of which a formal FIR (Ex.P.63) was registered. Gyasiram (P.W.42) stated that on 29.5.2005, he was posted as S.I. at Police Station Shipra Path. During investigation, he had recorded statement of Smt. Indira Devi, Manbhari Devi, Jai Vashistha and Satyanarain. Mangilal (P.W.43) stated that he was posted at Police Station Shipra Path. He had gone with Constable, Rajaram to Nadoti and on 9.9.2005 he had recorded statement of Photographer, Ram Dayal S/o. Bhanwar Singh, and had also taken photographs and negatives of the dead body into possession. Mangilal (P.W.43) stated that he was posted at Police Station Shipra Path. He had gone with Constable, Rajaram to Nadoti and on 9.9.2005 he had recorded statement of Photographer, Ram Dayal S/o. Bhanwar Singh, and had also taken photographs and negatives of the dead body into possession. Ram Kishore (P.W.44) who was In-charge of Malkhana, and on 20.10.2005 two sealed packets were deposited with him which were later deposited in Forensic Science Laboratory. Sunil Kumar Punia (P.W.45) is Investigating Officer of the case. He has proved various facets of investigation. Hari Ram (P.W.46) stated that he was posted as ASI at Police Station Nadoti. A dead body was found in a well. Same was photographed and later post-mortem of the same was got conducted. He further stated that he had prepared site plan of the spot. Dead body was identified by Indira Devi, wife of the deceased, vide Exhibit-P.8. 11. Thereafter statements of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. They denied the same and pleaded innocence. 12. Having taken note of the evidence led by the prosecution, it will be better to recapitulate broad facts upon which entire prosecution case revolves. (i). That on 17.5.2005, three persons had hired Tavera XUV bearing registration No.RJ14-T-8314 from Vashistha Tour & Travel Agency, Vijay Path, Mansarovar, Jaipur. The said travel agency was owned by Jai Vashistha (P.W.10). (ii). That the aforesaid Tavera vehicle was owned by Smt. Manbhari Devi (P.W.9) who had employed deceased, Krishna Murari, as a driver on the said vehicle. (iii). That as per Satyanarain (P.W.8), on 17.5.2005 at about 8.00-9.00 P.M., deceased Krishna Murari along with three persons had left Jaipur for Sikandara. (iv). That on 22.5.2005, an information was received at Police Station Nadoti that a dead body of an unknown person has been found in a well at Bheela Pada Road. (v). That on 23.5.2005 at 9.30 A.M., a dead body was recovered from the well and same was decomposed. Deceased was wearing a sky-blue shirt and a pant of black colour. Feet of deceased were tied with a plastic rope and around the vest, a Safi was tied and on the other end of Safi, stone of about 15-20 Kg. was tied. (vi). Deceased was wearing a sky-blue shirt and a pant of black colour. Feet of deceased were tied with a plastic rope and around the vest, a Safi was tied and on the other end of Safi, stone of about 15-20 Kg. was tied. (vi). That on 29.5.2005, Indira Devi (P.W.7) had lodged a report at Police Station Shipra Path, Jaipur that her husband, Krishna Murari Sharma, had taken a taxi Tavera along with passengers and before leaving, on 17.5.2005 at about 9.00 P.M., deceased had relayed information to his wife that he is going along with said persons to Sikandara. (vii). That on 29.5.2005, accused Netram was arrested and vide memo (Ex.P.6) on 30.6.2005 accused got recovered key of Tavera vehicle by removing a stone from a poll of electric transformer near the drain. On 15.7.2005 vide Exhibit-P.18 another key of Tavera vehicle was taken into possession from Manbhari Devi (P.W.9), owner of the vehicle. (viii). That on 17.6.2005 at about 9.05 P.M. accused Hemraj Meena was arrested vide arrest memo (Ex.P.26). On the same day and at almost the same time, i.e. On 17.6.2005, at about 9.15 P.M., accused Man Mohan Soni @ Monu was also arrested vide memo (Ex.P.27). (ix). That on 19.6.2005, vide Exhibit-P.22, police of Police Station, Shipra Path, Jaipur had taken into possession Tavera vehicle which was recovered by Police Station, Malpura from a deserted place near Railway Station, Mithakpur. (x). That vide Exhibit-P.29, accused Man Mohan made a disclosure statement under Section 27 of the Evidence Act and had disclosed the place where deceased, Krishna Murari, was allegedly murdered and vide Exhibit-P.30, accused Hemraj Meena also disclosed the place where deceased was allegedly murdered. They also disclosed the place where they had allegedly parked the vehicle. (xi). That on 20.6.2005, accused Man Mohan Soni and Hemraj Meena disclosed location of the well in which they had thrown the dead body, whereas on 2.7.2005 accused Netram Meena disclosed and got identified the well where, allegedly, dead body was thrown by all the three accused. Memo of identification of well at the instance of Man Mohan is Exhibit-P.39 and on the pointing out of Hemraj Meena is Exhibit-P.40 and at the instance of Netram Meena is Exhibit-P.36. (xii). Memo of identification of well at the instance of Man Mohan is Exhibit-P.39 and on the pointing out of Hemraj Meena is Exhibit-P.40 and at the instance of Netram Meena is Exhibit-P.36. (xii). That on 20.6.2005 vide Exhibit-P.29, accused Man Mohan Soni and on the same day vide Exhibit-P.30, Hemraj Meena, got identified the deserted room in the field where they, allegedly, committed murder of the deceased. (xiii). That on 22.6.2005 accused Man Mohan Soni, vide Exhibit-P.72, disclosed the shop from where he had purchased plastic rope and the place where he concealed papers belonging to the vehicle. Similarly, on 24.6.2005 accused Hemraj Meena, vide Exhibit-P.73, disclosed the place where he had concealed purse and papers of the vehicle. He disclosed that the said papers and purse were concealed by him in a room in House No.3/200 at Malviya Nagar, Jaipur and he can get recovered the same. (xiv). That on the same date on 24.6.2005, at 7.40 A.M. accused Man Mohan Soni, vide Exhibit-P.80, made a disclosure that number plate and service book and other papers of the vehicle were concealed by him in Khurra, Bhatto Ki Gali and he can get the same recovered. (xv). That on 30.6.2005, vide Exhibit-P.86, accused Netram made a disclosure statement that original papers of the vehicle were concealed by him in a house at Sanganer and he can get the same recovered from there. (xvi). That the test identification parade of all the three accused was conducted on 6.7.2005 in the presence of Judicial Magistrate, First Class, Jaipur City, Jaipur. Accused, Man Mohan Soni, was identified by Jai Vashistha (P.W.10) and Satyanarain (P.W.8) vide memo (Ex.P.18). Similarly, on the same date and time in the presence of same Judicial Officer, accused Hemraj Meena was identified by the same witnesses vide Memo (Ex.P.19). Similarly, accused Netram before the same Judicial Officer, was identified by the same witnesses vide memo (Ex.P.20). 13. Having taken note of the evidence and the documents relied by the prosecution, we shall take note of the circumstances, which have emerged against the accused. (a). Identification of three accused, in test identification parade and in court by Satyanarain (P.W.8) and Jai Vashistha (P.W.10), accused being the same persons who had accompanied the deceased in Tavera. (b). Disclosure of place where accused had, allegedly, left the vehicle driven by deceased Krishna Murari on identification of place of parking of vehicle. (c). (a). Identification of three accused, in test identification parade and in court by Satyanarain (P.W.8) and Jai Vashistha (P.W.10), accused being the same persons who had accompanied the deceased in Tavera. (b). Disclosure of place where accused had, allegedly, left the vehicle driven by deceased Krishna Murari on identification of place of parking of vehicle. (c). Disclosure of place where the accused had, allegedly, murdered Krishna Murari Sharma, driver of Tavera vehicle and identification of the spot at their instance. (d). Recovery of papers of vehicle in pursuance of disclosure made by the accused. (e). Recovery of key of vehicle in pursuance of disclosure made by the accused. (f). Recovery of mobile belonging to the deceased, from personal search of accused carried out at the time of arrest. (g). Evidence of last seen of deceased along with the accused, by Jai Vashistha (P.W.10) and Satyanarain (P.W.8). Evidence of identification of accused in test identification parade and evidence of last seen with the deceased. 14. We shall first take into consideration the evidence produced by the prosecution that two witnesses, namely Satyanarayan (PW-8) and Jai Vashistha (PW-10) had identified the three accused as one who had accompanied deceased - Krishna Murari Sharma in Tavera vehicle bearing registration No.RJ-14-T-8314. Both these witnesses have stated that they had last seen the deceased with the accused and also identified these accused as a person who had accompanied deceased. During test identification parade held vide Exhibit P/18, Exhibit-P/19 & Exhibit-P/20 respectively by the Judicial Magistrate, 1st Class, No.12, Jaipur City, Jaipur, above said two witnesses had identified the accused. 15. Satyanarayan (PW-8) in the Court has stated that on 17.05.2005 at about 8/9 P.M. Krishna Murari Sharma was taking Tavera vehicle. He signaled him to stop. Inside the car, three persons were sitting, one person was sitting on front seat and two were also on rear seat. In the Court, this witness had identified all three accused as one who were travelling in the vehicle. This witness has stated that he had identified Manmohan, accused vide memo Exhibit P/18 in test identification parade held in the presence of Magistrate. He identified Hemraj similarly vide memo Exhibit P/19 and Netram vide memo Exhibit P/20. 16. Counsel appearing for the accused-appellants has urged that three persons were sitting inside Tavera vehicle. This witness has stated that he had identified Manmohan, accused vide memo Exhibit P/18 in test identification parade held in the presence of Magistrate. He identified Hemraj similarly vide memo Exhibit P/19 and Netram vide memo Exhibit P/20. 16. Counsel appearing for the accused-appellants has urged that three persons were sitting inside Tavera vehicle. It was night time and it has nowhere come in evidence, that light of the vehicle was on. Thus, it is submitted by the learned counsel that it is very difficult for the witness who had glimpse of the accused to identify them and furthermore, it is difficult to believe that fleeting glimpse shall imprint identification marks in the mind of the witness. Thus, it is contended by the learned counsel that Satyanarayan (PW-8) is made up witness being co-taxi driver and he had not seen the deceased in Tavera vehicle, as it is deposed by him in the Court. In cross-examination, this witness stated that on 17.05.2005 he had seen the accused who were sitting in the vehicle and were going with Krishna Murari Sharma. However, he has further stated that it is correct that he had not made any such statement to Police personnel or to the Police at Nadoti. This witness further stated that his statement was recorded by the Police eight/ten days after the occurrence and in between eight to ten days he had not disclosed to any other persons that he had seen the said persons i.e. accused with the deceased. This witness further stated that no Police official had made site-plan of the spot from where he had allegedly seen the accused with the deceased. It was not noted in any site-plan as to where he was standing and from which side the accused was coming and which accused was sitting where. This witness stated that it is correct that in the statement made to the Police, he had given no features or marks of identification of accused regarding their height, nature of body built-up, colour, age or any description of the accused. He further admitted to be correct that in identification parde vide memo Exhibit P/20, it is nowhere recorded that he had seen all three accused with the deceased on 17.05.2005. In cross-examination also, this witness had admitted that the deceased Krishna Murari Sharma was his friend. 17. He further admitted to be correct that in identification parde vide memo Exhibit P/20, it is nowhere recorded that he had seen all three accused with the deceased on 17.05.2005. In cross-examination also, this witness had admitted that the deceased Krishna Murari Sharma was his friend. 17. PW-10 Jai Vashishtha had stated that he was an owner of travel agency. Krishna Murari, deceased was working as driver with his Agency. On 17.05.2005 one boy came who disclosed his name as Kishankant and he informed that he has to hire a vehicle for going to Sikandra and had given Rs.500/- as an advance. After 10-15 minutes, he came along with two other persons. He identified three persons in the Court as one who had come to his Office to hire vehicle. He identified the person who disclosed his name as Kishankant as Manmohan. He further stated that he had identified three accused in test identification parade vide memo Exhibit P/18 to Exhibit P/20 respectively. In cross-examination, this witness stated that he had not disclosed to the Police that three persons had come to book vehicle for Sikandra. He further stated that he had disclosed to the Police of Nadoti in his statement that in his presence three persons had left with the deceased. Attention of this witness was drawn to the statement D/3 where it was not so recorded. He further stated that he had disclosed to the Police the description of one person who had come to book the vehicle. This witness further admitted in cross-examination that persons who were mixed up with the accused at the time of test identification were up of different built and of different height. Thus, if we take confrontation of the witnesses with their previous statements and their deposition in Court, it is apparent that Satyanarayan (PW-8) had not disclosed in his statement under Section 161 Cr.P.C. the description or marks of identity of the accused to whom he had last seen with the deceased. Satyanarayan (PW-8) has also admitted that in Exhibit-P.19 it is not recorded that he had seen the accused with deceased. Thus, this witness has made material improvements while appearing as a witness and he has been duly confronted with previous statement made to police. Satyanarayan (PW-8) has also admitted that in Exhibit-P.19 it is not recorded that he had seen the accused with deceased. Thus, this witness has made material improvements while appearing as a witness and he has been duly confronted with previous statement made to police. So far Jai Vashishtha (PW-10) is concerned in his statement to Police, he had only given description of one person who came to hire the vehicle. Regarding other two accused, he had made material improvements and has thus made himself unreliable qua one person to whom he had later-on identified as the one who had come to hire the vehicle. 18. Another feature of the present case, which is required to be noted by us is that Hemraj was arrested by the Police on 17.06.2005 at 09:05 P.M. vide memo Exhibit P/26, whereas Manmohan was also arrested on the same day vide arrest memo Exhibit P/27. Test identification parade was conducted on 06.07.2005 after delay of more than twenty-days. Accused were produced before the Magistrate. There is no evidence brought on record that for period of twenty-days accused were not shown to anybody. Accused were produced before the Magistrate and were remanded to Police custody and subsequently to the judicial custody, nobody says that their faces were kept muffled. The Magistrate, who had conducted test identification parade has not been examined. The test identification parade has not been proved before the Court. 19. It is to be noted that the test identification parade in terms of Section 9 of the Indian Evidence Act is held for the purposes of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. Such test identification parade is required to be held as early as possible so that to exclude the possibility of the accused being identified either at the Police Station or at some other place. 20. We cannot become oblivious of the fact that the accused were not known to the witnesses earlier and test identification parade was held after twenty-days of arrest. 21. The whole idea of a test identification parade is that witness who claims to have seen the culprit at the time of occurrence are to identify them from the midst of other persons without any aid from any other source. The test is done to check upon the veracity of the witnesses. 21. The whole idea of a test identification parade is that witness who claims to have seen the culprit at the time of occurrence are to identify them from the midst of other persons without any aid from any other source. The test is done to check upon the veracity of the witnesses. The main object of holding an identification parade, during investigation stage, is to test memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the occurrence. 22. As per established standards suspect should be mixed up with various persons of more or less similar features and they should also dress or wear similar dress so far as possible so that suspect may be identified and picked up from the identification marks of individual. Therefore, non-suspect to be mixed up with the suspect for the parade should be of same height, appearance and having similarities of the accused. In the present case, since Magistrate who held test identification parade has not been examined, it could not be ascertained whether needful was done or not, whether the persons mixed up were of same age, height, built up and colour. Accused ought to get fair chance to demolish this piece of evidence by extending cross-examination to the Magistrate, who conducted test identification parade. 23. In the facts and circumstances of the present case, examination of the Magistrate who conducted test identification parade and prepared test identification memo Exhibit P/18 to Exhibit P/20 respectively was necessary to enable the accused to conduct cross-examination regarding the persons who were mixed up with the accused in the test identification parade, especially when PW-10 Jai Narayan in Court has stated that non-suspect who were mixed up with the accused were of different height and built up. Thus, this Court is of the view that the identification parade cannot be relied as corroborative piece of evidence, since both the witnesses have not given particulars and the marks of identification and description regarding features of the accused in their statements under Section 161 Cr.P.C., which were recorded at a belated stage. Thus, we are of the view that it is not safe to rely upon the evidence of last seen and test identification of the accused at the instance of these two witnesses. Thus, we are of the view that it is not safe to rely upon the evidence of last seen and test identification of the accused at the instance of these two witnesses. Furthermore, non-examination of Magistrate as a witness has caused serious prejudice to the accused. Thus, we shall ignore both the incriminating circumstances relied upon by the trial Court to convict the appellants. Disclosure statements made by accused and identification of spot of murder, well and place where car was parked. 24. The learned Public Prosecutor appearing for the State has placed much reliance upon the fact that the accused had disclosed the place where they had allegedly murdered Krishan Murari and later-on had also disclosed the location of well in which they had thrown the dead-body. 25. It has been vehemently argued by the learned State Counsel that accused has also disclosed the place where they had parked the vehicle. 26. According to State Counsel, these facts were especially in the knowledge of the accused. Since they knew the same, therefore, such declaration on the part of the accused should be construed as incriminating circumstances qua them. 27. In the present case, deceased had left Jaipur on 17.05.2005. His dead-body was recovered from the well on 23.05.2005 vide Memo Exhibit P/1 and inquest proceedings were also prepared on the same day vide memo Exhibit P/2. Prtap Singh (PW-13) had stated that on 22.05.2005 at about 06:00 P.M. an information was received from Journalist Shukla that in the well situated at Bhilapada Road an unidentified dead-body has been recovered. Having received the information on 22.05.2005, dead-body was recovered from the well on 23.05.2005 at 10:00 A.M. Autopsy on the dead-body was conducted by PW-12 Dr. S.S. Singh on 23.05.2005. 28. Indira Devi PW-7 wife of deceased on 02.06.2005 had identified the dead-body vide Exhibit Memo P/8. The unidentified dead-body was cremated on 23.05.2005 at 06:30 P.M. Once there was a disclosure to the Police regarding presence of dead-body in well by a journalist named Shukla, thus, nothing remained for the accused to disclose. Post recovery disclosure is meaningless. There can be no discovery of fact which was known to Police. 29. The unidentified dead-body was cremated on 23.05.2005 at 06:30 P.M. Once there was a disclosure to the Police regarding presence of dead-body in well by a journalist named Shukla, thus, nothing remained for the accused to disclose. Post recovery disclosure is meaningless. There can be no discovery of fact which was known to Police. 29. In the case of In re Chundru Pallayya vs. State of Madras, reported in 44 Cr.L.J. 1943 Page 489, it was held that where the Police knew the place where the accused had hidden the deceased's jewels and on a subsequent information given by the accused the Police discovered the jewels, it cannot be said that the jewels were discovered in consequence of the information given by accused. 30. In the case of Baghel Singh and another vs. Emperor, reported in AIR 1929 Lahore 794, it was held that the mere fact of an accused person having taken the Magistrate to a particular spot and pointed out the several places, where the various incidents narrated by the approver took place, is not admissible as evidence of conduct nor is it of any value in determining his guilt. 31. Another feature of the case, which this Court cannot ignore is that qua the place of incident three separate disclosure statements have been recorded and all the three accused qua the same fact has made disclosure. Once the facts stand disclosed subsequent re-disclosure is not admissible. We have no evidence among the two accused, namely Manmohan and Hemraj who had made disclosure on the same day first i.e. who out of two accused made disclosure at first instance. Thus, both the disclosure statements regarding place of identification are to be ignored. 32. It is to be noted that in pursuance of the disclosure made by the accused, no recovery has been effected. The well from where dead-body was recovered was already in knowledge of the Police and the room in the field where the alleged murder was committed has not been proved by the prosecution to the place where the alleged murder took place, as no blood stained earth has been taken into possession from the place of occurrence and same was also not sent to the Forensic Science Laboratory. 33. A lot has been said regarding disclosure of place where the accused had allegedly parked the vehicle. 33. A lot has been said regarding disclosure of place where the accused had allegedly parked the vehicle. Netrapal Singh (PW-14) who was posted as Constable Clerk at Police Station Malpura Janpad, Agra had stated that on 19.6.2005 they had recovered Tavera vehicle in deserted condition near Mehapur Railway Station. The said vehicle was taken into possesion by the Police Station, Malpura. Police of Police Station, Shiprapath on 19.6.2005 vide memo Exh.P/22 had taken the said vehicle in possession from Police of Police Station, Malpura. Police had already taken the vehicle into possession, thus, the disclosure of place where accused had parked vehicle, become irrelevant. 34. Mohan (PW-19) had stated that he along with accused reached at the spot where the vehicle was already parked. He stated that vehicle was already taken away by the Police. 35. To similar effect is the statement of PW-22 Laxmi Chand Roy. He stated that he was posted as In-charge of Police Chowki, Bhidakund, Police Station Malpura He stated that Tavera vehicle parked at deserted place was recovered. When the vehicle was already recovered, disclosure made by the accused on the same day i.e. 19.06.2005 subsequent to the recovery become meaningless. Once vehicle was recovered, same was already with the Police, it cannot be ruled out that before alleged disclosure was recorded by Police they had already received information that the vehicle is in possession of Malpura Police Station. 36. Thus, in our opinion, nothing hinges upon disclosure made by accused regarding the place where murder was allegedly committed, regarding location of the well from where dead-body was recovered and the place where the vehicle was allegedly parked. Thus, we ignore these circumstances, as they in no way advance the case of the prosecution. Recovery of mobile of deceased from accused 37. Hemraj Meena, co-accused, on 17.6.2005 at 9.05 P.M. was arrested vide memo, Exhibit-P.26. At the time of his arrest in presence of Kaluram and Tara Prakash, from personal search of accused Hemraj Meena, one mobile phone Nokia Model 2300, being IMEI No.35535900/255664/6 was recovered. This mobile set allegedly belonged to deceased, Krishna Murari. Tara Prakash Meena, attesting witness of recovery memo (Ex.P.28), appeared in the court as P.W.17. This witness stated that he had gone to Police Station Shipra Path. Police had arrested two persons. This witness had attested arrest memo and also memo regarding recovery of Nokia Mobile. This mobile set allegedly belonged to deceased, Krishna Murari. Tara Prakash Meena, attesting witness of recovery memo (Ex.P.28), appeared in the court as P.W.17. This witness stated that he had gone to Police Station Shipra Path. Police had arrested two persons. This witness had attested arrest memo and also memo regarding recovery of Nokia Mobile. Amit Kumar (P.W.30) stated that he is a student of Maharishi Arvind Engineering College. When he was returning from college, police called him. Many other people were standing there. One person had produced one paper, which was a bill. He had signed memo whereby bill was taken into possession. This witness further stated that the bill taken into possession by the police is Exhibit-P.56. However, in cross-examination the witness could not tell as to who had produced the bill and on which date it was produced. Himanshu (P.W.31) stated that he was having a shop selling SIM card. Hemraj, accused, approached him and had given him a driving license which was in the name of one Naveen Maisi and the accused had taken pre-paid SIM card being No.9828336984. Memo (Ex.P.56) dated 1.7.2005 state that Sitaram Sharma, elder brother of deceased, Krishna Murari, had produced a bill (Ex.P.57) dated 24.4.2005 whereby Krishna Murari Sharma, for mobile No.9414405702, had purchased Nokia Model 2300, IMEI No.355359002556646. Nobody proved the bill, neither the person who issued the bill, nor shop-keeper, nor his employee have been examined. Opportunity to accused to demolish purchase of mobile, or the fact that same belonged to deceased, by extending cross-examination has not been provided. Prosecution had also produced Exhibit-P.89, pre-paid call details of Phone No.9828336984 allegedly used by Hemraj, accused. It is to be noted that in written complaint (Ex.P.17), mobile number of deceased was mentioned as 9414405702. From Exhibit-P.89, it cannot be said that SIM of accused was inserted in the mobile belonging to the deceased. From the very day one, when the written report was made by widow of deceased, investigating agency knew the mobile number of the deceased. However, no effort has been made by the investigating agency to obtain the call details of mobile number used by the deceased. Even from service provider, location of the tower from which calls were made by the deceased has not been obtained. A little effort by the investigating agency would have brought on record the places visited by deceased, allegedly along with accused. Even from service provider, location of the tower from which calls were made by the deceased has not been obtained. A little effort by the investigating agency would have brought on record the places visited by deceased, allegedly along with accused. Prosecution has produced the bill of purchase of mobile to prove on record that the deceased was having same mobile with him which was recovered from accused, Hemraj Meena, at the time of his personal search. It is a settled position that in case of recovery, the court has to guard itself against the four possibilities. These possibilities are: (1) the complaint might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused person; (2) the police might have obtained property similar to the stolen property from the complainant or some one else and used it for the purpose of fabricating the recoveries. In considering this hypothesis regard must necessarily be had to the nature and value of the property recovered : (3) The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another person; (4) property might have been recovered from a third party and used by the police in one of the impugned recoveries. If the deceased was using the mobile number then why no efforts were made to take the call details, or locations of use of mobile. This court has to grope in the dark. However, even if we believe recovery of mobile of the accused, it cannot be said that the accused is guilty of murder. The accused may be a recipient of stolen property. Mobile has been recovered from the accused about one month after the occurrence. In the peculiar facts and circumstances of the case, presumption under Section 114 of the Indian Evidence Act cannot be drawn against the accused, Hemraj Meena. Recovery of Key of Vehicle and the Papers of the Vehicle from the Accused in Pursuance of Disclosure Statement 38. On 22.6.2005, Manmohan, appellant, vide Exhibit-P.72, made a disclosure that he had concealed papers of the vehicle at a place near Fatehpur Sikri. Recovery of Key of Vehicle and the Papers of the Vehicle from the Accused in Pursuance of Disclosure Statement 38. On 22.6.2005, Manmohan, appellant, vide Exhibit-P.72, made a disclosure that he had concealed papers of the vehicle at a place near Fatehpur Sikri. On 24.6.2005, Hemraj Meena, vide Exhibit-P.73, stated that he can get purse of the deceased and other papers recovered from a room taken on rent by him, i.e. House No.3/200, Malviya Nagar. On 24.6.2005, Manmohan stated that he can get number plate and service book and other papers of Tavera vehicle No.RJ14-T-8314 recovered which he had kept in Khurra, Bhatto Ki Gali. Hemraj Meena, on 30.6.2005, further made a disclosure statement (Ex.P.85) and stated that he can get the key of Tavera vehicle recovered from a place where he had concealed the same. 39. It is to be noted that disclosure statements (Exhibits-P.79, P.80, P.84, P.85 and P.86) are not attested by any independent witness. What is the effect of disclosure statements which are not attested by any witness, we have considered this question in judgment rendered by us in the case of Rameshwar and Dinesh @ Pillu vs. State of Rajasthan, D.B. Criminal Appeal No.158/2010, decided on 10.11.2014 and observed as under:- “Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex.P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. vs. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Sec. 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses.” 40. Since disclosure statement is not witnessed by any witness, we have been put on guard to examine recovery of articles with circumspection. Naina Devi (P.W.20), owner of the house from where alleged recovery was affected, stated that in her house Hemraj was residing as a tenant. Few days ago police came, and they had broken the lock of the house and had prepared some writing. Gajanand (P.W.21) stated that he was called by police. The police took one person whose face was muffled, to the first floor. The said person handed over few papers to the police. The police had done the writing work at the spot. The witness stated that he was not aware that the papers were of which vehicle. Recovery memos (Ex.P.37 & P.38) were attested by Mahesh Kumar. Mahesh Kumar has not been examined by the prosecution as witness. Thus, we cannot say that the recovery affected from the accused in pursuance of disclosure statement made by them inspire utmost confidence in the prosecution case. Even if we assume recovery at the instance of the accused then also it is not sufficient to complete the chain of circumstances to infer that no body else except the appellants had committed offence. 41. Same reasoning shall also apply towards recoveries affected from other co-accused. Consequently, recovery of articles at the instance of accused in pursuance of disclosure statement, for us, is not sufficient material to uphold conviction of the appellants. 42. 41. Same reasoning shall also apply towards recoveries affected from other co-accused. Consequently, recovery of articles at the instance of accused in pursuance of disclosure statement, for us, is not sufficient material to uphold conviction of the appellants. 42. As a result of above discussion, having discarded the test identification parade, last seen and identification of place where alleged murder was committed, or identification of location of well where the dead body was thrown, or car was parked, we are of the view that it is not safe to take the recoveries effected alone as a sufficient piece of evidence so as to uphold conviction of the present appellants. 43. Consequently, we accept the present appeals by extending benefit of doubt to the appellants, and set aside the conviction and sentence awarded qua the present appellants and acquit them of the charges. 44. Keeping in view, however, the provisions of Section 437A Cr.P.C., the accused-appellants are directed to forthwith furnish a personal bond each in the sum of Rs.20,000/- and a surety bond in the like amount each, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.