JUDGMENT 1. - Being aggrieved by the conviction recorded for the offences punishable under Section 302 and 201 IPC and the sentence awarded under the judgment dated 13.10.2004 by learned Additional Sessions Judge (Fast Track) No.1, Jodhpur, this appeal is preferred. 2. The facts relevant for adjudication of this appeal are that on 14.05.2003, a written report (Ex.P-1) was submitted by Mr. Ganesh Lal (P.W.1) at police station, Basni, Jodhpur with assertion that his younger brother Murlidhar was running a Pan shop, wherefrom he came to home at 09.00 p.m. on 13.05.2003. He then proceeded to attend a marriage, but did not return to home in night. In morning at about 07.00 a.m., some of the residents of Madhuban Colony informed that a dead body wrapped in a sack was lying behind U.I.T. shops. The dead body on being unwrapped by the police was found to be of Murlidhar. 3. On basis of the written report aforesaid, a case was registered and investigation commenced. During the course of investigation, autopsy was conducted on the corpse of deceased Murlidhar and as per its report (Ex.P-23), the cause of death was strangulation associated with other injuries. The medical board that conducted autopsy also observed that no opinion could have been given regarding recent sexual intercourse, but urinal swab and semen were preserved for examination. As per the postmortem report, the body was having 34 injuries, which are as follows:- (1) Lacerated wound 3cm x 1/2 cm scalp deep on left parietal region in middle antero-posteriorly. (2) Lacerated wound 4cm x 1/2 cm x scalp deep on parietal region in middle slightly on left side oblique. (3) Abrasion 2cm x 1cm on right side of forehead. (4) Abrasion 2cm x 2cm on left side of forehead. (5) Bruise 4cm x 2cm on nose with clotted blood in it. (6) Abrasion 1cm x 1cm on right cheek bone. (7) Abrasion 1/2 cm x 1/2 cm on right angle of mandible. (8) Abrasion 11/2 cm x 1cm on left cheek bone. (9) Abrasion 1cm x 1cm on left pinna. (10) Abrasion 6cm x 2cm on chin interiorly. (11) Abraded bruise 3cm x 1/2 cm around neck upper half. (12) Abraded bruise 15cm x 1/2 cm on right side of neck. (13) Bruise 10cm x 4cm on right side of neck lower part. (14) Bruise 10cm x 6cm on left side of neck. (10) Abrasion 6cm x 2cm on chin interiorly. (11) Abraded bruise 3cm x 1/2 cm around neck upper half. (12) Abraded bruise 15cm x 1/2 cm on right side of neck. (13) Bruise 10cm x 4cm on right side of neck lower part. (14) Bruise 10cm x 6cm on left side of neck. (15) Five abrasions varying in size from 1/2 cm x 1/2 cm to 11/2 cm x 1/2 cm on right elbow part. (16) Abraded bruise 4cm x 2cm on right forearm dorsally. (17) Bruise 9cm x 3cm on left forearm dorsally middle half. (18) Bruise 4cm x 3cm on right epigastric region. (19) Bruise 12cm x 6cm on left side chest anteriorly. (20) Bruise 11cm x 2cm on right side of abdomen anteriorly. (21) Bruise 10cm x 3cm on abdomen below umbilicus anteriorly. (22) Multiple bruises all over the back of chest and abdomen varying in size from 6cm x 4cm to 18cm x 2cm. (23) Bruise 4cm x 3cm on right buttock. (24) Bruise 16cm x 5cm on right thigh posteriorly. (25) Bruise 22cm x 6cm on right left antero-laterally with two abrasions 2cm x 1cm below knee and 3cm x 1/2 cm on upper half of leg. (26) Two abrasions 2cm x 2cm and 3cm x 2cm on left leg upper ⅔ portion anteriorly. (27) Abraded bruise 1cm x 1cm on right leg upper ⅓ anteriorly. (28) Bruise 16cm x 8cm on left leg laterally lower ⅓. (29) Multiple bruises in area of 34cm x 9cm on left arm dorso-laterally. (30) Abraded bruise 12cm x 8cm on right forearm upper ⅓ dorsally. (31) Abrasion 2cm x 1cm on left shoulder. (32) Abrasion 3cm x 1cm on left scapula. (33) Five abrasions each 1/2 cm x 1/2 cm on left side of neck posteriorly. (34) Two abraded bruises 1/2 cm x 1/2 cm each on left pinna posteriorly. 4. From the place where the dead body was found, the investigating agency recovered several articles and those were seized. The details of the articles recovered and seized are as follows:- (1) A shirt worn by deceased, a sando Baniyan and an underwear of deceased were recovered and were kept in a white coloured cloth bag. The bag after its sealing was marked as "A-4". The memo relating to the recovery aforesaid is Ex.P-4. The details of the articles recovered and seized are as follows:- (1) A shirt worn by deceased, a sando Baniyan and an underwear of deceased were recovered and were kept in a white coloured cloth bag. The bag after its sealing was marked as "A-4". The memo relating to the recovery aforesaid is Ex.P-4. (2) As per Ex.P-7, a white coloured blood-stained sack was recovered, in which the dead body was wrapped. A pant having blood-stains was also recovered and these two articles were kept in a white bag, that was marked as "A-0" after sealing. (3) In between the legs of the dead body, a used saree, blouse and petticoat were found. These articles on their recovery were seized and kept in a white cloth bag, which was marked as "A-1". The memo of recovery of these articles is available on record as Ex.P-8. (4) As per Ex.P-10, a copper wire measuring about 4-5 meters having yellow cover was found close to the dead body, thus, that was seized. An another piece of copper wire measuring 2-3 meters was also recovered. These two pieces of wire were kept in a bag marked as "A-5". The memo pertaining to recovery of these two wire pieces is available on record as Ex.P-10. (5) As per Ex.P-11, a piece of wood having sharp pointed ends with blood stains was found below the head of dead body. The same was also seized after its recovery and was kept in a bag, which was marked as "A-5". (6) The investigating agency on 15.05.2003 searched the house of the accused persons and recovered certain incriminating evidence. The recoveries of few articles was also made from the house. Suffice to mention that the house of the accused was searched as younger brother of the deceased noticed that the accused was not present in cremation of the deceased, despite having intimate relations. The investigating agency on 15.05.2003, as per Ex.P-16 recovered a pair of Chappals, an identity card relating to membership of shiv Sena, issued by its State office above Beniwal Travels, Station Road, Jaipur. These articles were kept in a white cloth bag, which was marked as "Q". The recovery memo of these articles is available on record as Ex.P-16. The investigating agency on 15.05.2003, as per Ex.P-16 recovered a pair of Chappals, an identity card relating to membership of shiv Sena, issued by its State office above Beniwal Travels, Station Road, Jaipur. These articles were kept in a white cloth bag, which was marked as "Q". The recovery memo of these articles is available on record as Ex.P-16. (7) As per document Ex.P-17, a blood stains were found at several places in the house of the accused, therefore, Farsh was broken from several places and was seized being containing blood stains. The broken pieces of Farsh having blood stains were kept in different envelops marked as "A- 6, B, C, D, E and F". A piece of wood having blood stains was also recovered and was kept in a bag marked as "G-8". Certain other articles including hair, condoms, cloths were also recovered and were kept in different envelops. The lock which was broken while entering into the house was also recovered, seized and kept in an envelop marked as "P". A piece of wire was also recovered from the house and that was kept in a white cloth bag marked as "R". 5. A police team went to arrest the accused persons at their native place in the State of Uttar Pradesh. The team brought them to Jodhpur on 26.05.2003 and arrested at Jodhpur on the same day. The arrest memo of accused Vijay Pratap and his wife Mrs. Sunita Devi are available on record as Ex.P-53 and Ex.P-54 respectively. After arrest of the accused persons, the investigating agency recovered a pant, a t-shirt and a cycle on basis of the information given by accused Vijay Pratap. The pant and the t-shirt were said to be of the accused and having blood stains, however, these articles were not sent to the Forensic Science Laboratory for their serological examination. 6. A memo relating to the scene of the place of crime prepared by the investigating agency on 15.05.2003 at 08.30 p.m. is available on record as Ex.P-19. The reference of this document is having relevance as that bears signatures of accused Vijay Pratap and Sunita Devi. Suffice to mention that admittedly the accused persons were not found at their house on 15.05.2003, when the search was made by the police. 7. The investigating agency after completing the investigation submitted its report to the court competent. The reference of this document is having relevance as that bears signatures of accused Vijay Pratap and Sunita Devi. Suffice to mention that admittedly the accused persons were not found at their house on 15.05.2003, when the search was made by the police. 7. The investigating agency after completing the investigation submitted its report to the court competent. The court after affording an opportunity of hearing to the accused persons framed a charge against them for commission of offences punishable under Section 302 and 201 IPC. On denial of the same by the accused, trial commenced as desired. 8. The prosecution supported its case by getting testimony of 25 witnesses examined, by exhibiting documents Ex.P-1 to Ex.P-90 and by producing 33 articles. Opportunity was given to the accused to explain the adverse and incriminating circumstances against them available in the prosecution evidence. The accused termed the evidence false and pleaded their innocence. As per accused Vijay Pratap, he was working as teacher in a school, where he submitted a leave application on 10.05.2003 as marriage of his brotherin- law was fixed on 15.05.2003 at Todarpur in the State of Uttar Pradesh. After getting the leave sanctioned, he proceeded for his native village on 11.05.2003 by Marudhar Express. While leaving Jodhpur, he handed over key of his house to deceased Murlidhar being his friend. He stayed at his in-laws village, i.e. Village Khamariya, District Mirzapur in Uttar Pradesh, upto 23.05.2003 and then came to village Todarpur. At Todarpur his father informed about some incident taken place at Jodhpur. On 24.05.2003, he proceeded for Jodhpur with police personnel. As per the explanation tendered by the accused, he was subjected to beating by the police and no information as per Section 27 of the Evidence Act was given by him. 9. The other accused Mrs. Sunita Devi, wife of accused Vijay Pratap, also stated that she went to her parental house as her cousin brother was to marry on 15.05.2003. As per this accused, she alongwith her husband and child left Jodhpur on 11.05.2003 by Marudhar Express. She alongwith her husband stayed at Village Khamariya upto 23.05.2003. They were brought to Jodhpur by police personnel. She pleaded her innocence and termed the evidence adduced by the prosecution as false and concocted. This accused also stated that the key of their house while leaving Jodhpur was given to Murlidhar. 10. She alongwith her husband stayed at Village Khamariya upto 23.05.2003. They were brought to Jodhpur by police personnel. She pleaded her innocence and termed the evidence adduced by the prosecution as false and concocted. This accused also stated that the key of their house while leaving Jodhpur was given to Murlidhar. 10. In defence, statements of D.W.1 Ram Lal and D.W.2 Raj Kumar were recorded and documents Ex.D/1 to Ex.D/14 were exhibited. 11. Learned trial court after considering the evidence available on record held the accused guilty for commission of the offences punishable under Section 302 and 201 IPC. Accordingly, the conviction was recorded and the sentence was awarded. 12. In appeal, the submission of learned counsel for the appellants is that the conviction recorded is founded on circumstantial evidence, which is not sufficient to conclude definite involvement of the accused persons in the crime in question. It is asserted that the trial court recorded conviction of the accused persons on the count that the dead body of deceased Murlidhar was found from their house and further at the instance of accused, blood-stained cloths were recovered, but, as a matter of fact, no evidence is available on record to connect the accused persons with the crime. Learned counsel pointed out several lacunas in investigation including that on 15.05.2003, the house of the accused persons was opened by the investigating team and after making search, the same was relocked and the key of that was kept in possession of the investigating officer, without sealing the lock, as such, chances of implanting evidence cannot be ignored. It is also pointed out that the search of the house was made on 15.05.2003 and the search memo was also made on the same day as per Ex.P-19, but that is having signatures of both the accused and this fact clearly indicates that the investigating agency was not working fairly but was completing the formalities even by preparing false documents. This manner of investigation resulted in false implication of the accused persons in the case. 13. It is further submitted that the trial court connected the accused persons with the crime on basis of recovery of the pant and t-shirt of accused Vijay Pratap made as per Ex.P-20. The articles recovered could have been implanted by the investigating agency as the house was under its possession and the lock was not at all sealed. 13. It is further submitted that the trial court connected the accused persons with the crime on basis of recovery of the pant and t-shirt of accused Vijay Pratap made as per Ex.P-20. The articles recovered could have been implanted by the investigating agency as the house was under its possession and the lock was not at all sealed. Much emphasis is given to the fact that the cloths, which were said to be recovered at the instance of accused Vijay Pratap, though were said to be containing blood stains, were not sent for their serological examination to the forensic science laboratory. These articles were not sent for serological examination intentionally, being implanted. In absence of having any finding with regard to blood stains said to be available on cloths, no reason exists to connect the accused with the crime. 14. While meeting with the submissions made by learned counsel for the appellants, learned Public Prosecutor urged that the ground of alibi taken by the accused persons has not been accepted by the trial court. The accused after committing the crime fled to their native place and after their arrest, on basis of the information given, recoveries were made, that clearly connect them with the crime. Much emphasis is given by learned Public Prosecutor to the fact that ample evidence is available on record to establish that Murlidhar was killed in the house of the accused persons and they failed to explain the availability of adverse evidence in this regard. 15. Heard learned counsel for the appellants and learned Public Prosecutor and examined the record in lucid. 16. There is no doubt about homicidal death of deceased Murlidhar. The recoveries made by the investigating agency on 14.05.2003 from the place where the dead body was found are also not in much dispute, but the foremost question in the appeal is about the evidence that connects the appellants with the crime in question. It is not at all in dispute that accused Vijay Pratap and deceased Murlidhar were good friends. They were maintaining quite cordial relations. The family members of the deceased or even any other person has not stated anything about any abrasion in the relationship of these two persons. It is not at all in dispute that accused Vijay Pratap and deceased Murlidhar were good friends. They were maintaining quite cordial relations. The family members of the deceased or even any other person has not stated anything about any abrasion in the relationship of these two persons. The accused came under the clouds of suspicion only for the reason that he did not join cremation of Murlidhar, though his house was at the distance of about 200 meters from the place where the dead body was found. Be that as it may, instant one is a case where no motive has been established for commission of the crime. 17. As per the investigating officer Mr. Bhanwardan (P.W.23), he searched house of accused on 15.05.2003 at 08.30 a.m. The house was found locked and the police team entered in the house after getting the house unlocked by a blacksmith. On entering into the house, blood spots were found at several places. A piece of wire and a blood-stained mop were also found. These articles were recovered. The samples of the blood-stains found at different places were also taken. All the articles were kept in different envelopes and were sent for their serological examination. Suffice to mention that the mop recovered from the spot was covered in a bag marked as "P-1". As per the recovery memo Ex.P-21, the mop was having blood-stains, but that was also not sent for its serological examination. The other blood samples of blood-stains were matching with the blood group of the deceased as the report (Ex.P-51) given by the Forensic Science Laboratory, Jodhpur. This entire evidence certainly establishes that Murlidhar was killed in the house of the accused, but that is not sufficient to establish that the killing was made by the accused persons. No definite presumption can be drawn for involvement of the accused in crime on the count of its commission in their house. The deceased was having cordial relations with accused and as per the explanation given by the accused, the key of the house was with deceased Murlidhar, hence, the possibility of his going to the house of the accused cannot be ruled out. It is quite possible that the deceased would have gone to the house in absence of the accused. The deceased was having cordial relations with accused and as per the explanation given by the accused, the key of the house was with deceased Murlidhar, hence, the possibility of his going to the house of the accused cannot be ruled out. It is quite possible that the deceased would have gone to the house in absence of the accused. At this point, it is relevant to be noticed that in between legs of the dead body, woman apparels were found and no investigation in relation to those was made. How, why and whose garments were kept with the dead body is a mystery. It is pointed out by learned counsel for the appellants that as per the statements made by Mr. Bhanwardan (P.W.23) and Shanti Prakash (P.W.24), a blue saree, blouse, petticoat and condoms were recovered from the house of the accused, but no effort was made to ascertain that to whom those belong and why those were kept behind an almira. In these circumstances, the apprehension of visiting the house by the deceased, as suggested by learned counsel for the appellants cannot be ignored easily. 18. The accused persons were connected with the crime on basis of recovery of the pant and t-shirt of the accused as per document Ex.P-20. These articles were kept in a bag marked as "S". These articles, as per Ex.P-20, were having blood-stains. However, the same were not sent for their serological examination to the Forensic Science Laboratory. We failed to understand as to why the investigating agency did not choose to get any finding about the group of blood said to be available on these articles. This lacuna in the investigation creates a reasonable doubt, especially looking to the fact that, as per the investigating officer Bhanwardan (P.W.23) and other police officer Shanti Prakash (P.W.24), the house was thoroughly searched on 15.05.2003 and at that time t-shirt and pant were not found. It was also accepted by Mr. Bhanwardan (P.W.23) that after making search of the house concerned on 15.05.2003, he locked the same, but did not seal that. He also kept key with him uptil 26.05.2003 and no person was deputed to guard the house. It was also accepted by Mr. Bhanwardan (P.W.23) that after making search of the house concerned on 15.05.2003, he locked the same, but did not seal that. He also kept key with him uptil 26.05.2003 and no person was deputed to guard the house. In view of this factual background, we are of the opinion that the recovery of the pant and t-shirt at the instance of accused Vijay Pratap is quite doubtful and that is not sufficient to connect him or his wife Mrs. Sunita Devi with the crime in question. 19. Another important aspect of the matter is that the document Ex.P-19 was prepared by the investigating agency on 15.05.2003. The document relates to the search of the house of the accused. Surprisingly enough, this document bears signatures of both the accused. No explanation is given by the investigating officer as to how signatures of accused persons were availed on this document on 15.05.2003, when admittedly they were not present at their house or were not in custody of police. This fact indicates that the investigating agency made efforts to create evidence against the accused persons. 20. The trial court while recording conviction of the accused persons also observed that they failed to explain about availability of blood-stains at several places in their house, therefore, an adverse presumption was required to be drawn. True it is, blood stains were found in the house of the accused persons, but that in no manner connects the accused persons with the crime. It is well-settled that a fact especially within the knowledge of a person is required to be proved by that person and in event of failure to prove that, an adverse presumption can be drawn and this is definitely an important factor that is to be taken into consideration as a vital circumstance, but it will not preclude the prosecution from discharging its prime duty to establish the case beyond reasonable doubt. On appreciation of the evidence available in the instant case, it can certainly be concluded that the death of Murlidhar was homicidal, he was killed in the house of the accused and then his body was thrown behind the U.I.T. Shops, but the link to connect the accused with crime is missing. On appreciation of the evidence available in the instant case, it can certainly be concluded that the death of Murlidhar was homicidal, he was killed in the house of the accused and then his body was thrown behind the U.I.T. Shops, but the link to connect the accused with crime is missing. The circumstance available does not frame a complete chain indicating only one conclusion, i.e. Involvement of the accused persons in the crime, as such, the finding arrived by the trial court is not founded on sufficient evidence, hence, the accused persons are entitled to get benefit of doubt. 21. Accordingly, the appeal is allowed. The conviction of the accused-appellants recorded by the trial court for the offences punishable under Section 302 and 201 IPC under the judgment impugned is set aside. The sentence awarded under the judgment impugned is also set aside. The accused persons be set at liberty forthwith, if they are not otherwise required in any other case.Appeal allowed. *******