JUDGMENT 1. - Abhijeet Chakravati, on 25th September, 2003, boarded a bus from Bhinmal to Jalore. It is a case of relations of Abhijeet Chakravati, the deceased, that from Jalore, Abhijeet Chakravati had to take a bus to Ajmer. It has come in the evidence that Ashutosh (nephew) (son of the sister of the deceased) (P.W.13) and Ashish Kumar (P.W.21), brother of the deceased, that Abhijeet Chakravati, deceased had not reached at his destination to meet his relations who were staying at Ajmer. Relations of the deceased became worried, and started search about the whereabouts of the deceased. 2. On 26th September, 2003, near the culvert of drain at a distance of 200 meters from Global Management College, an unidentified dead body was found. 3. Dinesh Gadwal (P.W.12) submitted a written report (Ex.P/37) before Suresh Kumar Mahraniya (P.W.24), SHO, Police Station, Christianganj, Ajmer. In the report, it was stated that the complainant was having an Office at Lohagal Panchsheel Link Road and in his Office on 26th September, 2003, between 10.30 to 11 A.M., he received an information that dead body of unidentified person was lying near the main road. The information was immediately relayed to the Constable at Shastri Nagar Police Post and thereafter, on arrival of Rajeev Sharma (P.W.6), employer of the complainant, written complaint was filed. It was stated in the written complaint that probably somebody has crushed and disfigured head and face of the deceased. After the cremation of the unidentified dead body, Ashutosh (P.W.13) and Ashish Kumar (P.W.21) had identified the dead body from the t-shirt worn by the deceased and photographs taken by the police. 4. We need not notice the issue regarding the identification of the dead body as counsel for the parties have advanced no arguments to assail the identity of the corpus recovered, cremated and finding given on this score by the Court of Additional Sessions Judge (Fast Track) No.1, Ajmer. 5. After registration of the FIR, Investigating agency came to the conclusion that present two appellants namely Omprakash @ Omya Rawat and Ajay Gupta @ Omprakash both were auto drivers and they in order to rob deceased of Rs. 1300/-, had committed murder of Abhijeet Chakravati. 6. 5. After registration of the FIR, Investigating agency came to the conclusion that present two appellants namely Omprakash @ Omya Rawat and Ajay Gupta @ Omprakash both were auto drivers and they in order to rob deceased of Rs. 1300/-, had committed murder of Abhijeet Chakravati. 6. The trial Court after convicting both the appellants for offences under Sections 302 and Section 201 IPC had sentenced both the appellants under Section 302 IPC to life imprisonment and pay a fine of Rs. 200/- each in default thereto, to undergo seven days simple imprisonment. For offence under Section 201 IPC, both the appellants were sentenced to two years rigorous imprisonment and pay a fine of Rs. 200/- each in default thereto, to undergo seven days simple imprisonment. 7. Both the appellants have assailed the conviction pronounced and sentence awarded by the trial Court by filing two separate appeals. Omprakash @ Omiya Rawat has instituted D.B.Criminal Appeal No.1157/2004, and Ajay Gupta @ Omprakash has filed D.B.Criminal Appeal No.39/2005. 8. By this common judgment, we shall decide both the appeals. 9. Prosecution had examined 25 witnesses and to secure conviction of the appellants had relied upon following five incriminating circumstances:- (i).Evidence of extra-judicial confession. (ii).Evidence to the effect that the deceased was last seen with both the appellants. (iii). Recovery of clothes of the deceased and accused. It is to be noted that blood stains of group AB on the t-shirt worn by the deceased tally with the pant (jeans) handed over by accused-appellant Ajay Gupta @ Omprakash; (iv).Recovery of a bag of the accused containing documents from a well in pursuance of the disclosure made by the accused ; (v). Moulds lifted from the place of occurrence tally with the shoe and chappal recovered from the two accused respectively. 10. To substantiate circumstance No.1 and 2 i.e. evidence of extra-judicial confession, and evidence of deceased last seen with both the appellants, prosecution examined three witnesses, namely Fareed @ Tatu (P.W.1), Santosh (P.W.3) and Sanjay (P.W.14). All the three witnesses have turned hostile and they have not supported the case of prosecution. They specifically stated that they had not seen the deceased along with the accused and furthermore, accused had not made any confession before them. All the three witnesses have turned hostile and they have not supported the case of prosecution. They specifically stated that they had not seen the deceased along with the accused and furthermore, accused had not made any confession before them. Since qua these two incriminating circumstances, there was no evidence with the prosecution, trial Court has not relied upon the circumstance of extra-judicial confession and the fact alleged that deceased was last seen with the two accused. 11. The trial Court has based conviction of the appellants on the remaining three incriminating circumstances mentioned above as (iii) to (v) by us. 12. To appreciate argument raised by counsel for the appellants that even these three incriminating circumstances have not been proved and they ought to be discarded by us, we will take note of testimony of material witness examined by the prosecution. 13. As stated earlier, Fareed @ Tatu (P.W.1), Santosh (P.W.3) and Sanjay (P.W.14) have not supported the prosecution case regarding circumstance that deceased was last seen with the accused and evidence qua extra-judicial confession. 14. Mukesh (P.W.2) had attested various memos regarding the recoveries effected from the spot. This witness stated that on 26th September, 2003 he had gone to graze the goat and had found a dead body. At that time, lot of crowd had gathered at the spot. Police had also reached there. The head and face of the dead body was badly crushed due to the blows given by the stone. Two-three stones were lying near the dead body. Deceased was wearing barmuda, red colour underwear, half sleeve t-shirt. Panchnama of dead body was prepared in the presence of the witness. Police had also taken into possession blood stained earth, sample of simple earth and stones stained with blood lying near the dead body. 15. What is required to be noted by us is the statement made by the witness in cross-examination that he had not seen foot impression of any person at the spot. 16. Smt. Rajkumari (P.W.4) and her son, Suresh (P.W.5) have been examined to prove the fact that an auto rickshaw owned by the Rajkumari was hired by accused Ajay Gupta @ Omprakash for plying the same. 16. Smt. Rajkumari (P.W.4) and her son, Suresh (P.W.5) have been examined to prove the fact that an auto rickshaw owned by the Rajkumari was hired by accused Ajay Gupta @ Omprakash for plying the same. Smt. Rajkumari has not stated anything incriminating against the accused except to state the fact that she was the owner of the auto rickshaw; so far her son Suresh (P.W.5) is concerned, he has turned hostile to the prosecution regarding giving the auto rickshaw to accused Ajay Gupta @ Omprakash on hire. This witness demolished the recovery memo (Ex.P/21) whereby auto rickshaw was taken into possession from appellant Ajay Gupta @ Om Prakash. 17. Rajeev Sharma (P.W.6) employer of the complainant examined by the prosecution had demolished the circumstance regarding recovery of bag from the well. This witness stated that on the day of occurrence, he had reached at the spot. In his presence, police had conducted proceedings regarding taking dead body into possession. He further stated that police had removed certain papers from the bag of the deceased which was lying nearby. He further stated that in his presence police had not lifted any foot moulds. In cross-examination, this witness stated that before the police arrived at the spot, many people had gathered there to see the dead body, and there were number of foot impressions available at the spot belonging to the various persons. He further stated that near the dead body, clothes were also lying and one chappal was also found there. This witness has fully demolished the case of the prosecution so far as the lifting of only two foot impressions and recovery of one chappal from one accused is concerned. For this witness has stated that number of foot impressions were lying at the spot and one chappal was also lying near the dead body. This witness further stated that bag of the deceased was also lying along with the dead body and from the same, police had removed certain papers. 18. Constable Sitaram (P.W.7) was examined to prove the link evidence. He has taken the various articles from the Malkhana to the Forensic Science Laboratory, Jaipur. Inder Singh (P.W.8) was posted as in-charge of Malkhana. 18. Constable Sitaram (P.W.7) was examined to prove the link evidence. He has taken the various articles from the Malkhana to the Forensic Science Laboratory, Jaipur. Inder Singh (P.W.8) was posted as in-charge of Malkhana. He deposed that chappal and shoe were deposited, in the malkhana, foot moulds were also deposited, and he had sent the same along with the bag including the clothes of the deceased through the Constable Sitaram (P.W.7) to the Forensic Science Laboratory. Ramdayal, Head Constable when Inder Singh had gone on leave for some time was temporary in-charge of the Malkhana. 19. Constable Heeralal (P.W.10) had stated that on 06th October, 2003, he was posted at Police Station, Christianganj and on 08th of October, 2013, on the identification of the accused, a bag was recovered from a well. In cross-examination, this witness stated that accused were first seen at the bus stand on 2nd October, 2013. But they were released by the police on the same night and on 06th October, 2013, accused were arrested. This witness further stated that when accused were arrested, they were wearing shoes/chappal and in his presence, no impression of shoe and chappal were taken. Mohan Singh (P.W.11) was a driver of the bus in which the deceased had travelled as stated earlier. Dinesh Gadwal (P.W.12) had deposed regarding the giving of the information to the police, and qua recovery of the dead body. This witness has further stated that near the dead body one packet was lying " ikl esa ,d cSx iM+k gqvk FkkA ". This witness later again stated " esjs lkeus iqfyl us ?kVuk LFky esa cSx mBk;k FkkA " This witness further stated that bag which was lying near the dead body from the said bag, certain papers and clothes of the deceased were taken out. 20. Ashutosh (P.W.13) nephew (son of the sister of the deceased) had identified the dead body on the basis of t-shirt worn by the deceased and the photographs. He further stated on 10th September, 2013, Ashish Kumar, brother of the deceased, had handed over the papers. Ashutosh Mukherjhee (P.W.13) regarding identification of the dead body was duly corroborated by Ashish Kumar (P.W.21). 21. Gaurav Garg (P.W.15) and Manish Kumar Soni (P.W.16) who had attested memo of recovery of clothes worn by the accused have turned hostile and have not supported the prosecution case. Ashutosh Mukherjhee (P.W.13) regarding identification of the dead body was duly corroborated by Ashish Kumar (P.W.21). 21. Gaurav Garg (P.W.15) and Manish Kumar Soni (P.W.16) who had attested memo of recovery of clothes worn by the accused have turned hostile and have not supported the prosecution case. Chamiliya Khan (P.W.17) being a photographer was called at the spot. He has proved photographs of the spot and dead body. Suresh Kumar Sindhi (P.W.18) was posted as a Tehsildar, in his presence, identification of the clothes of the deceased was carried in order to establish that the dead body recovered was of Abhijeet Chakravati. Bhanwar Singh (P.W.19) was posted as a Head Constable. He had lifted the foot moulds from the spot. In cross-examination this witness stated that number of persons can wear chappal or shoe of the same size and number. He further stated that place from where he had lifted foot moulds was an open and accessible place to others. Shakti Singh (P.W.20) had turned hostile to the prosecution and has not supported the prosecution qua recovery of the clothes in pursuance of the disclosure statement made by the accused from their respective houses. Satya Pal Singh (P.W.22) stated that at the police station, Investigating Officer on the disclosure made by the accused had recovered their shoe and chappal. Dr.R.K.Mathur (P.W.23) being a medical jurist had conducted autopsy of the dead body. We need not notice injuries on the persons of the deceased as it is admitted fact that deceased had died as result of injuries suffered by him. Suresh Kumar Mahraniya (P.W.24) has proved various facets of investigation. Kalicharan Sharma (P.W.25) has supported the prosecution case regarding the disclosure made by the accused, and the recovery of clothes stained with blood. 22. Thereafter, statement of the accused under Section 313 were recorded. All incriminating evidence was put to them and they denied the same. Accused in defence has examined two witnesses. The defence witnesses have only deposed that the accused used to ply the auto rickshaw in the day time and not in the night. Therefore, it is to be assumed that accused had not met the deceased. 23. We have heard counsel for the appellants and Shri N.S. Dhakad, learned Public Prosecutor. 24. Accused in defence has examined two witnesses. The defence witnesses have only deposed that the accused used to ply the auto rickshaw in the day time and not in the night. Therefore, it is to be assumed that accused had not met the deceased. 23. We have heard counsel for the appellants and Shri N.S. Dhakad, learned Public Prosecutor. 24. So far recovery of bag and the documents contained therein in pursuance of the disclosure statement made by the accused are concerned, we have no hesitation in holding that same is a padding by the Investigating Agency. Rajeev Sharma (P.W.6) who is an independent witness has stated that a bag was lying near the dead body from which the police had removed the papers. To similar effect is the statement of Dinesh Gadwal (P.W.12) who had lodged the FIR. He stated that near the dead body of the deceased a bag was lying. Thus, at the time, police learnt that unidentified dead body has been found and at the same time they had taken the bag into their possession, hence on 06th October, 2003 there was no need for the investigating agency to record the disclosure statement, after effecting arrest of accused that they had thrown the bag in a well. We cannot ignore the evidence of two independent witnesses, namely Rajeev Sharma (PW-6) and Dinesh Gadwal (P.W.12) that the bag was already taken into possession by the police and was available with them. It is only to secure conviction of the accused-appellants that recovery of a bag from the well has been shown and this to us is a crude padding by the Investigating Officer and same is to be disapproved. 25. So far as the recovery of foot moulds is concerned, Rajeev Sharma (P.W.6) has stated that lot of people had gathered there, and there were numerous foot impressions at the spot. He has further stated that one chappal was found near the dead body. Mukesh (PW-2) who was first to reach at the spot, stated that when he reached the spot, there were no foot impressions. Thus, if the statement of Mukesh (PW-2) and Rajeev Sharma (PW-6) are read in harmony, it is apparent that there were no foot impression at first instance when Mukesh (P.W.2) reached at the spot and it is later when people had gathered numerous foot impressions were found at the spot. Thus, if the statement of Mukesh (PW-2) and Rajeev Sharma (PW-6) are read in harmony, it is apparent that there were no foot impression at first instance when Mukesh (P.W.2) reached at the spot and it is later when people had gathered numerous foot impressions were found at the spot. Since the chappal has also been recovered from the spot, we cannot rule out that the chappal has been foisted upon the accused and same is also a padding. In the Court, accused have not been made to wear the chappal or shoe. Sample of foot moulds were taken and sent to the Forensic Science Laboratory. Furthermore, Bhawnar Singh (PW-19) had stated that chappal and shoe of similar size and number can be worn by numerous persons. Another factor which we cannot ignore is that both impression of foot lifted from the spot i.e. foot moulds and shoe and chappal were sent together to Forensic Science Laboratory, thus, we cannot overrule that the foot moulds were prepared at the police station. Thus, we shall not take into consideration the evidence that the foot moulds lifted from the spot tally with the shoe/chappals worn by the accused. 26. Shri Anshuman Saxena, counsel for the appellant Ajay Gupta @ Omprakash further relied upon Mohd. Aman & Anr. v. State of Rajasthan AIR 1997 Supreme Court 2960 to contend that evidence/science of foot-prints is not fully developed and same can only be used to reinforce other evidence and this piece of evidence in itself is not sufficient to uphold the conviction of the accused. 27. Now, we are, left with the evidence to the effect that pant (jeans) worn by Ajay Gupta @ Omprakash is having blood stains of group 'AB' and the same blood group has also been found on stone i.e. weapon of offence, and on the t-shirt worn by the deceased. There is no evidence with us that the blood group of the deceased was 'AB'. Furthermore, after delay of two and a half months, all the articles were sent together to the Forensic Science Laboratory. Furthermore, relying upon Shankarlal Gyarasilal Dixit v. State of Maharashtra 1981 Criminal Law Journal Page 325 it is submitted by Shri Anshuman Saxena, counsel for the appellant Ajay Gupta @ Omprakash that no effort was made by the prosecution to rule out the fact that the same blood group may be of the accused. Furthermore, relying upon Shankarlal Gyarasilal Dixit v. State of Maharashtra 1981 Criminal Law Journal Page 325 it is submitted by Shri Anshuman Saxena, counsel for the appellant Ajay Gupta @ Omprakash that no effort was made by the prosecution to rule out the fact that the same blood group may be of the accused. In support of this, counsel for the appellant has relied upon para 28 of judgment of Shankarlal Gyarasilal Dixit (supra). The said para reads as under:- "28. The discovery of a blood stain of the B Group measuring 0.5. cm. in diameter on the appellant's pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. 'B' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant's under-pant, he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl." 28. Even otherwise, having discussed the evidence threadbare and by discarding recovery of bags and tallying of foot moulds lifted from spot with chappal and shoe of accused, we are of the view that solitary circumstance regarding recovery of the clothes from the accused with blood stains is not sufficient to complete the chain of circumstances to arrive at the conclusion that nobody else except the accused may have committed offence. 29. Consequently, in view of the discussion made above, we accept the present appeals and as a matter of abundant caution, extend benefit of doubt to the appellants, and set aside their conviction and sentence and acquit them of the charges. *******