JUDGMENT 1. - These appeals have been filed against the judgment dated 23.2.2005 which was passed by the Additional Sessions Judge(Fast Track), Chittorgarh in Sessions Case No. 54/2004 titled as State of Rajasthan v. Deepak and ors . The matter relates to FIR No. 83/2004 of Police Station, Kapasan, District Chittorgarh under Section 302 IPC etc. 2. In the said case, out of three accused, one accused Lehru was acquitted by the trial court from the charge of Sections 302/120-B, 302/34 and 201 IPC. D.B. Criminal Appeal No. 233/2006 has been filed by the State of Rajasthan against the acquittal of accused Lehru. By the impugned judgment dated 23.2.2005, other two accused persons Deepak and Bheru Lal were convicted and sentenced by the trial court as follows:-Deepak & Bheru Lal: (1) Section 302 IPC : Life imprisonment with a fine of Rs. 5000/- and, in default of payment of fine, six months' additional rigorous imprisonment. (2)Sec. 302/120-B IPC: Life imprisonment with a fine of Rs. 5000/- and, in default of payment of fine, six months' additional rigorous imprisonment. (3) Section 201 IPC : Five years' rigorous imprisonment with a fine of Rs. 3,000/- and, in default of payment of fine, six months' additional rigorous imprisonment. 3. All the substantive sentences of each of the accused appellants were ordered to run concurrently. 4. D.B.Criminal Appeal No.321/2005 has been filed by accused-appellant Deepak against the said judgment and D.B.Cr.Jail Appeal No. 707/2005 has been filed by accused appellant Bheru Lal from Jail against the said judgment. Mr. Vineet Jain was appointed as Amicus Curiae on 22.7.2005 to assist the court. 5. Since all these appeals are against one judgment of the trial court,so all these three appeals are being decided by this common judgment by this Court. 6. The period of custody suffered by the accused appellants till date is as follows:- (1) Accused-appellant Deepak was arrested on 12.3.2004 and since then he is continuously in custody. (2) Accused-appellant Bheru Lal was arrested on 19.3.2004 and since then he is continuously in custody. (3) Accused-respondent Lehru was arrested on 12.3.2004 and he was enlarged on bail on 25.8.2004 by order of this Court. 7. In the appeals filed by accused-appellants Deepak and Bheru Lal, it has been argued that they have been convicted against the provisions of law and against the evidence led by the prosecution in the trial court. (3) Accused-respondent Lehru was arrested on 12.3.2004 and he was enlarged on bail on 25.8.2004 by order of this Court. 7. In the appeals filed by accused-appellants Deepak and Bheru Lal, it has been argued that they have been convicted against the provisions of law and against the evidence led by the prosecution in the trial court. It has been argued that the prosecution story against them was full of doubts and still the trial court has convicted them. It has also been argued that "last seen evidence" against these accused-appellants produced by the prosecution in the trial court was not reliable at all. Similarly, extra judicial confession alleged against them was not believable. It has further been argued on their behalf that circumstantial evidence against these two accused appellants was also not coherent and so both these accused appellants have prayed for acquittal. 8. The learned Public Prosecutor has strongly opposed the arguments of the appellants in these two appeals. It has been argued by the learned Public Prosecutor that there is difference between benefit of doubt and benefit of reasonable doubt and, as per the learned Public Prosecutor, appellants Deepak and Bheru Lal were not able to create a reasonable doubt in the mind of the trial court and so they have rightly been convicted under different sections of the Indian Penal Code. 9. So far as the State appeal against Lehru is concerned, we have gone through the record of the case in this regard also. It has been argued that Lehru was also involved in criminal conspiracy of murder of Maheshwar Singh in the company of Bheru Lal and Deepak. In this regard, after perusal of the elaborate judgment of the trial court dated 23.2.2005 of the trial court, we are of the considered opinion that Lehru may have been involved in the criminal conspiracy of murder of Maheshwar Singh but there is a difference between 'may' and 'must'. We are of the considered opinion that the prosecution could not prove its case beyond reasonable doubt against accused-respondent Lehru and the trial court has rightly acquitted him from the charges levelled against him. We are of the considered opinion that the prosecution could not prove its case beyond reasonable doubt against accused-respondent Lehru and the trial court has rightly acquitted him from the charges levelled against him. In a judgment against acquittal, even if two views are possible, the appellate court is bound to take the view which favours the accused who had been acquitted by the trial court and, accordingly, even if two views are possible then also this Court is not supposed to take a different view from that of the trial court in this regard. Our view gets support from State of Rajasthan v. Raja Ram (2003) 8 SCC 180 wherein, it was held by the Apex Court that in an appeal against an acquittal, interference by an appellate court should only be minimum and appreciation of evidence in such appeals will be permissible only where admissible evidence has been ignored by the trial court and the appellate court should interfere only when there are compelling or substantial reasons for interfering with the judgment of acquittal. 10. With regard to accused-appellant Lehru, in our opinion, no admissible evidence against him has been ignored by the trial court and the learned Public Prosecutor has not been able to point out any compelling and substantial reasons for interfering with the impugned acquittal order regarding accused-respondent Lehru and so, this Court is not supposed to re-appreciate the evidence in view of the judgment of the Apex Court mentioned earlier. Hence the appeal of the State against accused-appellant Lehru deserves dismissal. 11. Now, we will consider the case of appellants Deepak and Bheru Lal. PW-22 Jaswant Singh@ Guddu, PW-23 Kishan Singh Rathore, PW-30 Lalit Singh, PW-34 Mst. Kamla and PW- 35 Mst. Deepika were the persons who had seen deceased Maheshwar Singh@Meshu, who was a child of aged 12 years in the company of accused-appellant Deepak and Bheru Lal in the evening soon before his death. "Last seen evidence" given by these five witnesses is perfectly reliable and there are no contradictions in their statements. Their statements are quite natural and trustworthy. Most of these witnesses are independent having no grudge against any of the accused/appellants. Further, they are not interested witnesses of the prosecution. "Last seen evidence" given by these five witnesses is perfectly reliable and there are no contradictions in their statements. Their statements are quite natural and trustworthy. Most of these witnesses are independent having no grudge against any of the accused/appellants. Further, they are not interested witnesses of the prosecution. Their evidence has been discussed in detail by the trial court and so, we need not go again into the details of their statements, but if we summarise the story narrated by them, then it can be said that PW-22 Jaswant Singh@Guddu states that in the said evening, he had gone to the rented house of his friend Lalit Singh. He says that Deepak was also a tenant in the house where Lalit Singh was a tenant and in that evening of 9.3.2004 Maheshwar Singh@Meshu (the deceased) had come to the room of Deepak and then Meshu was taken on a moped(M-80). Deepak was driving the moped. Meshu was sitting on his back and then Bheru Lal was sitting behind Meshu on the moped. He says that he had asked Meshu and Meshu replied that three of them are going to 'mataji' temple for 'darshan'. In the same evening Meshu was allegedly murdered. PW-30 Lalit Singh supports the testimony of his friend Jaswant Singh@Guddu in this regard. PW-23 Kishan Singh also stated that in the said evening, he had also seen Meshu going on M-80 with accused-appellant Deepak and Bheru Lal towards Krishi Upaj Mandi, Kapasan and accused-appellant Deepak was driving the moped. On his back, Meshu was sitting and then Bheru Lal was sitting on the back of Meshu on the moped. All the three were going towards Krishi Upaj Mandi where the dead body of Meshu was found in a well. 12. PW-34 Mst. Kamla and PW-35 Mst. Deepika are also witnesses of "last seen evidence" because both of them also support the prosecution story and they also state that soon before the alleged killing of Meshu, they had seen Meshu in the company of accused-appellant Bheru Lal and Deepak at about 6.30 p.m. at the room of Deepak. They have also not deviated from their statements even in their cross-examination. 13. We have no doubt to say that "last seen evidence" given by Jaswant Singh@ Guddu, Kishan Singh, Lalit Singh, Mst. Kamla and Mst. Deepika is reliable. They have also not deviated from their statements even in their cross-examination. 13. We have no doubt to say that "last seen evidence" given by Jaswant Singh@ Guddu, Kishan Singh, Lalit Singh, Mst. Kamla and Mst. Deepika is reliable. In our view, "last seen evidence" given by these witnesses is of conclusive character sufficient to establish the link of accused-appellants with the murder of Meshu allegedly committed by both of them. This evidence cannot be said to be a weak type of evidence. The witnesses of "last seen evidence" in this case are trustworthy because there is no material warranting the finding that these witnesses had any motive to falsely implicate accused-appellants Deepak and Bheru Lal on the charge of murder. The witnesses are not cooking up a false story and hence the principle laid down in Aher Maya Visa v. State of Gujrat, 1992 Cr.L.J. 3570 , is applicable here. 14. Then comes extra judicial confession. PW-24 Narayan and PW-36 Chhotu Lal are the witnesses before whom accused-appellants. Deepak had made extra judicial confession. We know that the extra judicial confession is a weak type of evidence and it has to be examined by this Court with greater care and caution and we should be convinced that extra judicial confession was made voluntarily and it is truthful, it should inspire confidence and it should be supported by a chain of cogent circumstances and it should be corroborated by other prosecution evidence also and it should not suffer from any material discrepancies and inherent improbablities and it should be proved like any other fact and it should be proved in accordance with law. We have no doubt that statements of Narayan and Chhotu Lal have duly proved the extra judicial confession of accused appellant-Deepak. We have no doubt that statements of Narayan and Chhotu Lal have duly proved the extra judicial confession of accused appellant-Deepak. Their statements have elaborately been discussed in the judgment of the trial court and at the cost of repetition, it can be said that PW-24 Narayan states that about ten or eleven days earlier to the murder of Meshu, accused-appellant Deepak had offered him to participate in the kidnapping for ransom of Meshu and it was proposed by Deepak to him that he should take Meshu on M-80 with the help of Bheru Lal and then he should leave Meshu in 'jangal' where Bheru Lal will kill him and then Deepak will ask for a ransom of rupees fifty thousand from the father of Meshu, who is Sarpanch of village and then all of them will share the booty. Narayan further states that he refused to become a party of the criminal conspiracy and participate in the proposed crime of murder. He further states that after murder of Meshu, accused-appellant Deepak told him that they have successfully achieved their target and they have killed Meshu but he will not tell about their offer to any one, otherwise they will kill him also. PW-36 Chhotu Lal also had narrated the same story. Both these witnesses say that because of terror of accused-appellants, they did not tell the fact of extra judicial confession of accused-appellants to any one. 15. PW-38 Mahendra Singh, C.I., the Investigating Officer, at page 7 of his cross-examination has unfolded the fact that during interrogation of accused Deepak, he had come to know about extra judicial confession by accused-appellant Deepak in presence of Chhotu Lal and Narayan. The Investigating Officer has given the explanation that he could record the statements of Narayan and Chhotu Lal only on 6.4.2004 because before 6.4.2004 these witnesses were not traceable and he was also busy in other Government dutie. It is pertinent to mention here that statements of Chhotu Lal and Narayan were recorded under sections 164,Cr.P.C. by a Judicial Magistrate on the request of the Investigating Officer and there is no contradictions in the court statements of Chhotu Lal and Narayan from those earlier statements. Chhotu Lal and Narayan are totally independent witnesses and there is no material warranting the finding that these witnesses had any motive to falsely implicate the accused appellants on the charge of murder. Chhotu Lal and Narayan are totally independent witnesses and there is no material warranting the finding that these witnesses had any motive to falsely implicate the accused appellants on the charge of murder. Argument of cooking up a story by introducing false prosecution witnesses of extra judicial confession in the circumstances of the present case also does not stand to scrutiny. 16. The prosecution story is further supported by the recovery of some blood stained articles from accused appellant Deepak as well as accused-appellant Bheru Lal. Moped used in the kidnapping of Meshu was also recovered from accused-appellant Deepak. In this regard, statement of PW-6 Bhagwan Lal, PW-1 Dinesh Chand, PW-2 Mangi Lal, PW- 11 Mangal Singh, PW-19 Banshi Lal, PW-25 Anil Kothari,PW- 31 Devi Lal and PW038 Mahendra Singh,C.I. will have to be examined by us. 17. Let us start with statement of PW-39 Mahendra Singh,C.I. Leaving aside the articles seized by him from the spot of the incident, if we proceed further then it appears that he had seized a key from accused-appellant Deepak while Deepak was being arrested by him. Memo of arrest is Ex.P. 39 and it also mentions that a key was recovered from accused-appellant Deepak from the search of his body at the time of his arrest. The key was kept in Malkhana by him without sealing it because at that time it was not known that key will be a relevant piece of evidence to prove the charge of murder or not. At a later stage, this key was taken back by the Investigating Officer and then it was provided to accused appellant Deepak so that he may open his locked room by this key in furtherance of information Ex.P. 42 given by him under Section 27 of the Indian Evidence Act. In information Ex.P. 42 accused Deepak had shown his willingness to assist in the recovery of knife and his blood stained clothes which had already been washed by co-accused Bheru Lal and moped (M-80) from his room. 18. Mahendra Singh, C.I. Further states that as per information given by accused Deepak, he had taken accused Deepak to his room where he was living as a tenant and there the key of the room was given back by him to accused Deepak so that he may open his room by it. 18. Mahendra Singh, C.I. Further states that as per information given by accused Deepak, he had taken accused Deepak to his room where he was living as a tenant and there the key of the room was given back by him to accused Deepak so that he may open his room by it. He further states that accused Deepak opened the room with the said key and then he assisted in the recovery of moped(M-80), his blood stained (but washed out also), 'pant', shirt and towel in presence of Basanti Lal (PW-19) and Anil Kothari(PW-25). The said seizure memo has been exhibited by the witness as Ex.P. 23. It is pertinent to mention here that the aforesaid recoveries from accused-appellant Deepak have been fully supported by both the motbirs Basanti Lal and Anil Kothari in their un-controverted court statements. 19. Mahendra Singh, C.I. further states that during the investigation, accused-appellant Bheru Lal was also arrested by him on 19.3.2004 and the memo of arrest is Ex.P. 41. He further states that while in custody, accused-appellant Bheru Lal had also given him an information for recovery of knife and his blood stained clothes which had been washed by him. Memo of information is Ex.P. 43. Mahendra Singh, C.I. further states that accused-appellant Bheru Lal then took him to his residence where he was a tenant, but his room/house was found locked because his mother had gone somewhere two days ago and so the accused-appellant Bheru Lal was advised to break open the lock and accordingly, he broke open the lock and then he assisted in the recovery of a knife and his blood stained 'pant' and shirt though washed which had been allegedly worn by him at the time of alleged commission of crime. 20. 20. Much stress was given during arguments on the statement of PW-12 Bhagwati Lal, who was Malkhana In-charge of Police Station, Kapasan because as per him and as per the record, the key of the room of Deepak was given to him by the S.H.O. on 12.4.2004 and as per the record, the key was not given back by him to S.H.O., Police Station, Kapasan but after perusal of Malkhan entries ex.D.1 and Malkhana Register Ex.P. 24, we are convinced that since the key was not sealed and it was given to Malkhana In-charge for only keeping it there for safely because the Investigating Officer was not supposed to carry the key every where he had to go during the investigation of the case and so if the Investigating Officer had taken back the key from the Malkhana without knowledge of the Malkhana H.C., then it is not such an irregularity for which the prosecution story comes under cloud. It is settled law that the justice should not suffer for the minor irregularities committed by the Investigating Officer during investigation because one Investigating Officer has to conduct so many investigations of different cases at one time and he cannot be meticulous at every step in the investigation. 21. The investigating Officer Manehdra Singh was cross-examined at length by the defence counsel in the trial court, but he has been found unshattered in his cross-examination. 22. PW-1 Dinesh Chand, PW-2 Mangi Lal and PW-31 Devi Lal are the witnesses in whose presence recoveries were made by the Investigating Officer and these witnesses have fully supported the prosecution story in this regard and they have not deviated from their statements in cross-examination too. 23. PW-6 Bhagwan Lal is father-in-law of accused-appellant Deepak and he also states that though he is registered owner of M-80 but he had given his vehicle as a gift to his son-in-law Deepak, the accused-appellant. 24. Thus, the recovery of incriminating articles from the possession of accused-appellant Deepak as well as accused appellant Bheru Lal have been fully established beyond reasonable doubt. 25. Now, FSL report Ex.P. 49 deserves attention of this Court. In FSL report Ex.P. 49, it has been mentioned that the T-shirt, towel and all the three 'pants' sent for serological examination to FSL were found containing stains of blood of Group-'B'. 25. Now, FSL report Ex.P. 49 deserves attention of this Court. In FSL report Ex.P. 49, it has been mentioned that the T-shirt, towel and all the three 'pants' sent for serological examination to FSL were found containing stains of blood of Group-'B'. This thing proves that pant worn by deceased, pant worn by accused-appellant Deepak and pant worn by accused-appellant Bheru Lal as well as towel and T-shirt recovered in the case were having stains of blood of one and the same person proving the complicity of both the accused appellants in the murder of Meshu@Maheshwar Singh. It is pertinent to mention here that human blood was also found in the 'baniyan', shirt,'chaku' and bushirt, though it could not be ascertained that it was of Group-'B' or not. 26. PW-2 Bahadur Singh is the person who had lodged FIR and who had first seen the dead body of Meshu. He is brother of Surendra Singh, who is father of deceased Meshu. PW-9 Dr. Pukhraj, PW-10 Dr. Ganpat Jain and PW-11 Dinesh Kumar Paliwal were members of the Medical Board and had conducted the post-mortem of Meshu. Meshu was brutally killed by sharp edged weapon as is evident from the postmortem report Ex.P. 21. This fact has not been challenged by the accused-appellants. There is no infirmity in the statements of other witnesses like,PW-5 Vinod Kumar, at whose shop Meshu told Deepak that he is going for tuition and at whose shop Deepak had asked Meshu to meet him while returning from tuition. PW-14 Babu Lal is the person who had chalked out Ex.P. 26, PW-17 Surendra Singh is father of deceased Meshu, PW-22 Jaswant Singh had seen the dead body of brutally killed child, PW-26 Mst. Kamla had seen accused-appellant Bheru Lal washing the dirty linen, no doubt Bheru Lal was in much hurry and so he could not successfully wash and remove the blood stains from his own clothes as well as from the clothes worn by co-accused Deepak, PW-32 Bansi Lal and PW-33 Nathu Lal are witnesses in whose presence the dead body was taken out from the well near Krishi Upaj Mandi. In the circumstances of the case, we are of the considered opinion that DW-1 Ratan Lal and DW-2 Chandra Singh have tried to misguide the court regarding the authenticity of the FIR lodged by Bahadur Singh. 27. In the circumstances of the case, we are of the considered opinion that DW-1 Ratan Lal and DW-2 Chandra Singh have tried to misguide the court regarding the authenticity of the FIR lodged by Bahadur Singh. 27. The learned counsel for the accused-appellants Bheru Lal and Deepak have relied upon the following rulings:- (1) Shankar Lal Gyarsi Lal Dixit v. State of Maharashtram 1981 CRI.L.J. (SC) 325 28. In this case, the Hon'ble Apex Court has held that in the case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. (2) State of Rajasthan v. Girdhari Lal, 1989 (2) RLR 641 . 29. In this case the Division Bench of this Court also held that to pass judgment of conviction in the cases of circumstantial evidence, the circumstance from which conclusion of guilt is to be drawn should in the first instance be fully established, should be consistent only with hypothesis of guilt of the accused. (3) Raja Ram v. State of Rajasthan, 1985 Cr.C. Raj. 342 . 30. In this case, the Division Bench of this Court held that if the evidence is only of last seen, which is not of conclusive character to establish that the murder was committed by the accused then the accused person cannot be convicted on such weak type of evidence. It was further held in this case when conviction is to be passed on circumstantial evidence then the circumstances proved must be complete and of conclusive nature so as to be fully consistent with the innocence of the accuse and should not explainable of other hypothesis except guilt of the accused. 31. It was further held in this case when conviction is to be passed on circumstantial evidence then the circumstances proved must be complete and of conclusive nature so as to be fully consistent with the innocence of the accuse and should not explainable of other hypothesis except guilt of the accused. 31. If we look into the other side of the things then the following rulings also cannot be lost sight of:- (1) Sahadevan v. State of Tamilnadu, 2012 AIR SCW 3206 . 32. In this case, the Hon'ble Apex Court has laid down the following principles of law:- (i)The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii)It should be made voluntarily and should be truthful. (iii)It should inspire confidence. (iv)An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v)For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi)Such statement essentially has to be proved like any other fact and in accordance with law. (2) State of Rajasthan v. Raja Ram (2003) 8 SCC 180 . 33. In this case, it was held by the Hon'ble Apex Court that in an appeal against acquittal, interference by an appellate could should ordinarily be minimum and appreciation of evidence in such appeals will be permissible only where admissible evidence has been ignored and the appellate court should interfere only when there are compelling or substantial reasons for doing so. It was further held that if there is possibility of two views, the view favourable to the accused should be adopted. It was further held that presumption of innocence of the accused is further strengthened by his acquittal. (3) Aher Maya Visa v. State of Gujarat, 1992 Cr.L.J. SC 3570 . 34. In this case, the statements of the prosecution witnesses were held trustworthy by the Hon'ble Apex Court because there was no material warranting the finding that the witnesses had any motive to falsely implicate the accused person on the charge of murder. It was further held that in case of cooking up a story by introducing alleged prosecution witnesses does not stand to scrutiny. It was further held that in case of cooking up a story by introducing alleged prosecution witnesses does not stand to scrutiny. (4) Inspector of Police, Tamilnadu v. John David, (2011) 2 Cri.L.J. 894 (SCC) 640 . 35. In this case, it was held that to base conviction on the basis of circumstantial evidence, the evidence must specify the following tests:- (i)The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else and; (iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 36. In the circumstances of the case, after due consideration of the evidence, facts and circumstances of the case, we are fully convinced that the conviction of accused-appellants Bheru Lal and Deepak under Sections 302, 302/120-B and 201 IPC by the trial court was perfectly based on cogent and reliable evidence and there was not only circumstantial evidence but there was recovery of incriminating articles as well extra judicial confession by the accused-appellant Deepak and so there is no infirmity in the judgment of the trial court and so the appeal of both accused-appellants Deepak and Bheru Lal also deserve dismissal. 37. In the conclusion, all the three appeals, one appeal of the State against accused-respondent Lehru and other two appeals of accused-appellants Deepak and Bheru Lal are hereby dismissed and the judgment of the trial court is kept undisturbed. The accused-appellants Deepak and Bheru Lal will have to serve the remaining part of the sentence as ordered by the trial court by the impugned judgment. Three copies of this judgment should be sent to the jail concerned, out of which two copies should be supplied to accused appellants Deepak and Bheru Lal and one copy for use of jail office. Three copies of this judgment should be sent to the jail concerned, out of which two copies should be supplied to accused appellants Deepak and Bheru Lal and one copy for use of jail office. One copy of this judgment along with record of the case be sent back to the trial court within five days.Appeals of State and accused are dismissed. *******