JUDGMENT : Kanwaljit Singh Ahluwalia, J. Kesar Devi aged 75 years and her husband Kishori Lal were residing separately in two adjoining houses in Hisla Village on Narainpur Road, District Alwar. Kesar Devi deceased, aged 75 years, and her husband Kishori Lal (P.W.1), aged 80 years, were blessed with four children. Three sons were residing in Assam and another son Murlidhar (P.W.2) was residing at Chandigarh. In old age also to the annoyance of her husband Kishori Lal (P.W.1), Kesar Devi was engaged in money lending and for advancing loan she used to retain gold and silver jewelry/articles pawned by the borrowers. Therefore, relations between husband and wife were not very cordial. They used to sleep in separate adjoining houses, but meals were cooked for Kishori Lal by his wife deceased Kesar Devi. On the intervening night of 21.9.2007 and 22.9.2007 in order to commit theft, accused committed lurking house trespass, took away gold, silver and household articles and in the process of committing theft caused murder of Kesar Devi. 2. Kishori Lal (P.W.1) presented written report (Ex.P.1) before Mannu Singh (P.W.12) who was then posted as S.H.O., Police Station Thanagaji. Written report (Ex.P.1) when translated into English reads as under:- "To, The SHO Sahib, P.S. Thanagaji. Sir, It is submitted that after constructing a house at Ghata Bus Stand, I am residing there. My wife Kesar resides in a separate house. Yesterday evening she had called me to take meals. I brought my meals in other house and after taking my dinner, I slept. I have four sons. They are residing outside. My wife do the business of advancing loan to various persons. I have restrained her, but she quarrel with me. Today night my wife was sleeping in her house. Somebody after tying her hands and feet, has committed her murder. She has received injuries on her face. Some unidentified people had taken away the goods from the wooden boxes. I am not aware how much goods have been stolen as my wife was engaged in money lending. Report is presented. Action be taken. dated 22-9-07 Sd/- Kishori Lal" 3. On the basis of above written report (Ex.P.1) formal FIR (Ex.P.26) bearing No.111/07 was registered at Police Station Thanagaji, District Alwar. 4. I am not aware how much goods have been stolen as my wife was engaged in money lending. Report is presented. Action be taken. dated 22-9-07 Sd/- Kishori Lal" 3. On the basis of above written report (Ex.P.1) formal FIR (Ex.P.26) bearing No.111/07 was registered at Police Station Thanagaji, District Alwar. 4. Before we advert to the testimony of the investigating officer as to how they involved the accused, we may notice here that during investigation, the investigating agency nominated Mahendra s/o Veer Singh, caste Bhadbhuja, Vikram @ Vikky s/o Madanlal Dhobi and Gordhan s/o Amilal, caste Bhadbhuja as accused. Investigating agency has presented charge-sheet against them under Section 173 Cr.P.C. The said charge-sheet was committed to the court of Sessions and was committed to the court of Additional Sessions Judge (Fast Track) No.1, Alwar. The said court charged the appellants for offences under Sections 302, 460, 392 IPC. The accused pleaded not guilty and claimed trial. Prosecution had examined fourteen witnesses and had proved on record documents Exhibits-P.1 to P.44. Statements of the accused were recorded under Section 313 Cr.P.C. wherein they denied all incriminating circumstances and in defence, proved on record statements of Kishori Lal (P.W.1) and Murlidhar (P.W.2) recorded under Section 161 Cr.P.C. as Exhibits-D.1 to D.3. 5. The Court of Additional Sessions Judge (Fast Track) No.1, Alwar vide impugned judgment dated 10.6.2009 convicted all the three accused for offence under Sections 460, 392 and 302 IPC. Vide a separate order of even date, the appellants were sentenced as under:- "U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three years additional imprisonment. U/s. 460 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 3000/- and in default thereof to undergo one year additional imprisonment. U/s. 392 IPC: Seven years rigorous imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one year additional imprisonment." 6. Aggrieved against their conviction and sentence, accused have preferred three separate appeals. Mahendra has preferred D.B. Criminal Appeal No.887/2009, Vikram @ Vikky has instituted D.B. Criminal Appeal No.888/2009 and Gordhan has filed D.B. Criminal Appeal No.1288/2011. In all the three appeals, a common judgment has been assailed and conviction and sentence of the appellants has been questioned. Hence, we will decided all the three appeals together. 7. Mahendra has preferred D.B. Criminal Appeal No.887/2009, Vikram @ Vikky has instituted D.B. Criminal Appeal No.888/2009 and Gordhan has filed D.B. Criminal Appeal No.1288/2011. In all the three appeals, a common judgment has been assailed and conviction and sentence of the appellants has been questioned. Hence, we will decided all the three appeals together. 7. During the course of trial, prosecution to secure conviction of the appellants has relied on the following circumstances:- (I). Soon before the occurrence in the day, i.e. on 21.9.2007 Mahendra and Vikram @ Vikky appellants were spotted by Kishori Lal (P.W.1) roaming in the vicinity and they also had consumed Bidis in the lawn of the house of deceased. Similarly, Gordhan accused soon before the occurrence on the night of 21.9.2007 was seen near the place of occurrence by Ravi Malik (P.W.4). This circumstance has not been relied by the trial Judge. We shall consider the evidence and reasoning given by the trial court in later portion of the judgment. (II). Finger prints were lifted from the spot. Specimen finger print of the accused were taken during the course of investigation and as per report (Ex.P.43) submitted by the Director, Finger Print Bureau, Rajasthan, Jaipur, finger prints lifted from the spot have tallied with the specimen finger prints given by all the three appellants. (III). Foot moulds were also lifted from the spot and subsequently, specimen impressions of footwear worn by the accused were taken and as per the report (Ex.P.44) two foot moulds lifted from spot have tallied with the specimen impression of footwear of accused taken during investigation. (IV). Recovery of various articles was affected from the accused which were allegedly stolen from the house in which Kesar Devi was murdered. 8. Before we deal with each circumstance, dwell about their admissibility and appreciate the evidence whether they can be relied as incriminating circumstances against the accused or not, it is necessary for us to give gist of the evidence led by the prosecution. 9. Kishori Lal (P.W.1) stated that on the day of occurrence he and his wife were residing separately in two houses built near the flour mill of Village Hisla. He has four sons, three sons are residing in Assam and one son is residing at Chandigarh. At Hisla, husband and wife were staying alone. In the evening, his wife Kesar Devi called him to take food. He has four sons, three sons are residing in Assam and one son is residing at Chandigarh. At Hisla, husband and wife were staying alone. In the evening, his wife Kesar Devi called him to take food. He after bringing food went to his house, took dinner and then slept. At 7.00 O'clock in the morning, one girl came to give milk, she called his wife and after his wife had not opened the door, she came and asked as to where is Sethani Mai. Thereafter he went inside the house and found that both the hands and feet of his wife were tied with a Sari and she was strangulated by putting Sari around her neck. Blood was coming out of her face. Household articles were lying scattered. The witness stated that he became suspicious as in the day two boys belonging to Bhadbhuja community came. They took Bidi from him and thereafter they sat in the lawn and played Chirmi (a game like Chosar). At 4.30 P.M. in the evening both the boys again demanded Bidi. The witness identified accused Mahendra and Vikram @ Vikky as the one who had demanded Bidi. At 4.30 P.M. a boy said that his matchbox has fallen on the roof and he sought permission to go to the roof to fetch matchbox. The witness permitted him to do so, but also told him to bolt the door after descending from the staircase. The witness after his wife was found murdered expressed his suspicion that door of the staircase was kept open by the said boy who had gone to the roof on pretext of fetching match box. Then his neighbour a Bengali Doctor also came and declared her wife as dead. Kishori Lal (P.W.1) submitted written report (Ex.P.1). 10. In cross-examination the witness stated that his sons visit them once in a year. His wife was engaged in money lending, even though he used to restrain her and on this count they were not having cordial relations. The witness stated when he saw his wife he raised a noise and 200-300 villagers came. Police arrived at the scene of occurrence at 8.30-9.00 AM. The witness stated to be correct that the police had lifted soil from the spot and had asked him to submit a complaint. He submitted a written report (Ex.P.1). The witness stated when he saw his wife he raised a noise and 200-300 villagers came. Police arrived at the scene of occurrence at 8.30-9.00 AM. The witness stated to be correct that the police had lifted soil from the spot and had asked him to submit a complaint. He submitted a written report (Ex.P.1). The witness stated in court that after occurrence, he saw both the boys for the first time in the court. He further admitted that in his report he has not mentioned that Sari was tied around the neck of his wife. He also admitted to be correct that in his report that he had suspicion against two boys of Bhadbhuja community, who demanded Bidi, played Chirmi and had gone to the staircase. The witness stated he could not dictate these facts in statement (Ex.P.1) ^^fjiksVZ izn'kZ ih0 1 esa ml le; ;g ckr eq>s fy[kkuk /;ku ugha jgkA** 11. Ravi Malik (P.W.4) is neighbour of Kishori Lal (P.W.1). He stated that he is having his clinic on Narainpur Road. He knew Kishori Lal. He is having his house in neighbourhood of Kishori Lal. The witness stated that on 21.9.2007 at 9.00 P.M. he had seen accused Gordhan standing near the wall of house of Kishori Lal. Then he heard noise of falling of stone and a shrike. Then he raised a voice as to who is there. He came out of the house and saw that Gordhan was standing around the wall of the house of deceased. House of Gordhan is near to his clinic. After sometime, Gordhan came to his clinic and demanded a tablet for headache. 12. Murlidhar (P.W.2) is son of the deceased and Kishori Lal (P.W.1). He deposed in court that his parents were residing separately in two houses. On 22.9.2007 he received information about murder of his mother. He also reiterated as to what has been stated by his father Kishori Lal (P.W.1) and Ravi Malik (P.W.4). In court the witness proved photographs (Ex.P.3 to P.7) of dead body of his mother, photographs (Ex.P.8 and P.9) regarding household articles. The witness stated that on 22.9.2007 he had not taken care of household articles as his brothers had not arrived. In court the witness proved photographs (Ex.P.3 to P.7) of dead body of his mother, photographs (Ex.P.8 and P.9) regarding household articles. The witness stated that on 22.9.2007 he had not taken care of household articles as his brothers had not arrived. The witness stated that as per his knowledge, one pair of silver Payjeb, one silver chain, old 25 silver coins, one earring, two nose rings, one HMT ladies watch, one necklace having Sheomata pendent, one old purse in which his mother used to keep cash were missing. He had given list (Ex.P.10) of the articles missing from the house. In Exhibit-P.10, ten articles were specified which were missing from the house. The witness stated that on 29.9.2007 police called them and told that accused had agreed to get the stolen articles recovered. Then he and his brother Dinesh had gone to the police station. There all the three accused were present. First of all they went to the house of Gordhan. From there, Gordhan got recovered purse of the deceased in which Rs. 156/- were there and a necklace of Sheomata. Then they went to the house of Vikram. Vikram got 12 silver coins, two nose rings, one pair of ear ring containing three gold chain recovered. The witness had identified the articles. Then Mahendra took them to his house. Police party got recovered from the house of Mahendra eight silver coins, two silver athannis, one pair of silver Payjeb and one ladies watch. Purse was proved as Article-1, pendent as Article-2, silver coins as Article-3, two ear rings containing strings of gold and two nose pins as Article-4, HMT ladies watch as Article-5, two silver athannies and eight silver coins as Article-6, silver chain and pair of silver Payjeb as Article-7. The witness proved recovery memo of articles from house of Gordhan as Ex.P.11, recovery memo of articles at behest of Mahendra as Ex.P.12 and recovery memo of articles at instance of Vikram @ Vikky as Ex.P.13. We may highlight here that all the three recovery memos (Ex.P.11, P.12 and P.13) are attested by Dinesh Kumar and Kailash and these two witnesses have not been examined whereas Murlidhar (P.W.2) who has not attested these documents during investigation has deposed qua them. 13. In cross-examination, Murlidhar (P.W.2) admitted that he had presented list of articles (Ex.P.10) to the police on 23.9.2007. 13. In cross-examination, Murlidhar (P.W.2) admitted that he had presented list of articles (Ex.P.10) to the police on 23.9.2007. He further stated that he had gone to the house of Vikram for the first time. When they went, house was open. He had not gone inside the house. Therefore, he cannot say whether others were inside the house or not. Police brought articles outside, he identified them and thereafter the articles were into possession by the police. The witness further stated that goods were not got identified before any Magistrate, and they were not mixed-up with other articles of similar nature. 14. Jairam (P.W.3) had attested inquest and had identified the dead body. 15. Harish Chand (P.W.5) had attested the site plan of the spot (Ex.P.2) and also the inquest (Ex.P.15). 16. Girraj (P.W.6) stated that he knew Kishori Lal (P.W.1). After his wife was found dead, Kishori Lal (P.W.1) had asked him to make a telephonic call. 17. Constable Dharamveer Singh (P.W.7) proved arrest memo of Gordhan, Mahendra and Vikram @ Vikky as Exhibits-P.16, P.17 and P.18 respectively. All the three accused were arrested on 26.9.2007. This witness further stated that on 28.9.2007 impression of finger prints were taken into possession vide memo (Ex.P.19) and on 30.9.2007 impression of footwear of the three accused were taken into possession vide memo (Ex.P.20). In cross-examination, this witness stated that finger prints of the accused were taken at the police station. 18. Dr. Banwari Lal (P.W.8) had conducted autopsy on the dead body being a member of the medical board and proved on record post-mortem report (Ex.P.22) and as per opinion of the medical board, cause of death was asphyxia as a result of trachea and all the injuries were opined to be ante mortem in nature. 19. Gautam (P.W.9) being a photographer was called at the spot. He had taken photographs of the dead body and the house of the deceased. 20. Mool Chand (P.W.10) had carried sealed samples and the chance prints to the FSL. 21. Ratti Ram (P.W.11) was posted as In-charge of Malkhana. 22. Mannu Singh (P.W.12) proved various facets of investigation being investigating officer. He stated that from the spot, from the goods lying scattered, finger prints were taken. He also stated that team of FSL was called at the spot. They had examined the place of occurrence. 21. Ratti Ram (P.W.11) was posted as In-charge of Malkhana. 22. Mannu Singh (P.W.12) proved various facets of investigation being investigating officer. He stated that from the spot, from the goods lying scattered, finger prints were taken. He also stated that team of FSL was called at the spot. They had examined the place of occurrence. This witness further stated that vide memo (Ex.P.31) they have lifted two foot moulds from the spot, ^^ekSds ls izn'kZ ih0 31 ds t;sZ dsoy nks iSjksa ds fu'kku mBk;s FksA** 23. Prahlad (P.W.13) on 30.9.2007 at Police Station had taken sample impression of the footwear worn by the three accused. 24. Ram Singh (P.W.14) stated that he was posted in M.O.B. Branch of S.P. Office and he had lifted finger prints from the spot. 25. Thereafter statements of the accused under Section 313 Cr.P.C., as already stated, were recorded. They denied all incriminating circumstances and pleaded false implication. 26. We have heard Shri A.K. Gupta, Shri Anshuman Saxena and Shri Karanpal Singh respective counsels for Vikram @ Vikky, Mahendra and Gordhan accused-appellants and Shri N.S. Dhakar, learned Public Prosecutor for the state. 27. Learned counsel for the appellants have urged that the prosecution has miserably failed to prove chain of circumstances to arrive at the conclusion that offence has been committed only by the appellants and by nobody else. It has been vehemently urged before us that essential safeguards for which courts have insisted from the time immemorial regarding lifting of foot moulds and finger prints to ward off false implication have not been adhered to by the investigating agency. They contended that a fear loom large that in order to solve the case the investigating agency in its over zeal has falsely implicated the three accused. Counsel for the accused have canvassed before us that the court must be very cautious and insist that finger prints and foot moulds and the sample finger prints and foot moulds are not prepared at the police station. It is contended that finger prints lifted from the spot and foot moulds picked-up from the spot remain with the police when the sample finger prints and the impression of footwear of accused were taken. The court must ensure that the entire proceedings are not carried in the police station and the accused are not victim of false implication. 28. It is contended that finger prints lifted from the spot and foot moulds picked-up from the spot remain with the police when the sample finger prints and the impression of footwear of accused were taken. The court must ensure that the entire proceedings are not carried in the police station and the accused are not victim of false implication. 28. Shri N.S. Dhakar, learned Public Prosecutor, has stated that the police officials have no animosity against the accused and that there is no reason that they will falsely implicate the accused. 29. We have heard the learned counsel for the parties. We shall consider all the four incriminating circumstances brought on record by the prosecution to examine the rival submissions. Circumstance-I, Accused soon before the occurrence were seen around the place of incident: 30. It has come in the statement of Kishori Lal (P.W.1) that on the day of occurrence two boys belonging to Bhadbhuja community came. They demanded Bidi, sat in the lawn of the house, played a game of Chirmi. Then one boy on the pretext that matchbox had fallen on the roof, had gone to the roof to pick the same and kept the door of the staircase open. Kishori Lal (P.W.1) qua this circumstance had expressed his suspicion that two boys who had come in the afternoon are responsible for the commission of the offence. This witness for the first time identified Mahendra and Vikram @ Vikky in the court. He stated that earlier there too he had not identified the accused before any authority. The contention of the learned counsel for the accused that identification in court is meaningless and has no significance has some merit as the identification in court being a substantive evidence in present case is not supported by a corroborative evidence of test identification parade carried before the Magistrate. Admittedly no test identification proceedings were carried in the present case. 31. Ravi Malik (P.W.4) has stated that on the night of occurrence at 9.00 PM he had seen Gordhan standing near the wall of the house in which incident took place. From this alone circumstance, the prosecution intend to infer that Gordhan is also involved in the occurrence. Admittedly no test identification proceedings were carried in the present case. 31. Ravi Malik (P.W.4) has stated that on the night of occurrence at 9.00 PM he had seen Gordhan standing near the wall of the house in which incident took place. From this alone circumstance, the prosecution intend to infer that Gordhan is also involved in the occurrence. Admittedly, the fact that the accused were seen on the date of occurrence around the house of the deceased, for the first time has been stated in court as this fact has not been mentioned by the witness in their previous statement recorded under Section 161 Cr.P.C. by the police. Admittedly, the fact that the accused were seen on the date of occurrence around the house of the deceased, for the first time has been stated in court as this fact has not been mentioned by the witness in their previous statement recorded under Section 161 Cr.P.C. by the police. The trial Judge has disbelieved this part of evidence by returning following finding:- ^^ifjfLFkfr ^^n**%&** ^^vfHk;qDrx.k fodze o egsUnz dks e`rdk dh gR;k ls iwoZ ifjoknh fd'kksjhyky us fnukad 21-09-07 dks 'kke dks ns[kk o vfHk;qDrx.k vkpj.k lafnX/k ik;k x;k rFkk vfHk;qDr xksj/ku dk vkpj.k Hkh ?kVuk Hkh iwoZ jkf= dks lafnX/k ik;k x;kA** bl lUnHkZ esa vfHk;kstu i{k dh lk{; ih0 MCY;q0 1 fd'kksjhyky o ih0MCY;q0 4 jfo efyd dh lk{; ij vkfJr jgh gSA ih0MCY;w0 1 fd'kksjhyky }kjk tks izFke lwpuk fjiksVZ izn'kZ ih0 1 izLrqr dh xbZ gS] mlesa mlus vKkr O;fDr;ksa }kjk vijk/k dkfjr djuk crk;k gSA bl lUnHkZ esa izn'kZ Mh0 1 c;ku bl lk{kh ds ?kVuk ds fnu gh ys[kc) gq, gSaA mlesa Hkh bl lk{kh us vKkr O;fDr;ksa }kjk mldh iRuh dh gR;k dkfjr djuk crk;k gSA vfHk;qDrx.k fodze o egsUnz ?kVuk ls iwoZ fnukad 21-09-07 dks ifjoknh ds ?kj ij vk;s gksa] mudk vkpj.k lafnX/k jgk gks] mUgksaus chMh ih gks o ckn esa ?kj ij cSBdj fpjch [ksyh gks] bl rF; dk mYys[k fjiksVZ izn'kZ ih0 1 o bl lk{kh ds c;ku izn'kZ Mh0 1 esa ugha gSA bl lk{kh us loZizFke U;k;ky; ds le{k gh vfHk;qDr egsUnz o fodze mQZ foDdh dks igpkuk gSA egsUnz o foDdh fnukad 21-09-07 dks ifjoknh ds ?kj ij vk;s gksa vkSj mUgksaus ifjoknh ds ikl vkdj chMh ih gks] bl lUnHkZ esa fd'kksjhyky ls dksbZ f'kuk[rxh dh dk;Zokgh vuqla/kku vf/kdkjh us vfHk;qDrx.k egsUnz o fodze ds fxjrkj gksus ds ckn ugha djok;h gSA ;fn ;g eku Hkh fy;k tk;s fd egsUnz o fodze ?kVuk dh fnukad 21-09-07 dks ifjoknh ds ?kj vk;s Fks rks ;g rF; ek= lUnsg izdV djus ds fy, rks i;kZIr gS] ijUrq vijk/k vfHk;qDrx.k us gh dkfjr fd;k gks] bl rF; dh dksbZ vdkV~; izek.k ugha gS vkSj u gh bls vijk/k ds lUnHkZ esa Js"B lk{; ds :i esa ns[kk tk ldrk gSA blh izdkj ih0MCY;q0 4 jfo efyd ds ?kj ds lkeus vfHk;qDr xksj/ku fuokl djrk gSA mldk lafnX/k vkpj.k ih0MCy;q0 4 jfo us fnukad 21-09-07 dks gksuk crk;k gS] ijUrq blls Hkh ;g rF; dgha izdV ugha gqvk gS fd e`rdk ds ?kj ls fudyrs gq, ih0MCY;q0 4 jfo us vfHk;qDr xksj/ku dks ns[kk gksA ih0MCY;q0 4 jfo dh lk{; ls vfHk;qDr xksj/ku ds lUnHkZ esa mldk lafnX/k vkpj.k vo'; izdV gqvk gS rFkk vijk/k ds lUnHkZ esa ml ij lUnsg izdV fd;k tk ldrk gS] ijUrq vijk/k vfHk;qDr xksj/ku us gh dkfjr fd;k gks] bl lUnHkZ esa ih0MCY;q0 4 jfo dh lk{; lqlaxr ugha gSA** 32. We are in agreement with the above finding given by the learned trial court and hold that this circumstance cannot be construed as incriminating circumstance against the accused and hence, same is ruled out from the consideration. Circumstance-II, Evidence of finger prints: 33. On 22.9.2007 vide memo (Exhibit-P.32) in presence of Ramjilal (not examined) and Kishori Lal (P.W.1), investigating agency had picked-up chance finger prints from the goods lying scattered in the house. 34. Ram Singh (P.W.14) who was posted as ASI in M.O.B. Branch in the office of Superintendent of Police, Alwar stated that he examined household articles lying scattered at the place of murder and from the utensils he had lifted chance finger prints. Thereafter, on 28.9.2007, the S.H.O. called him at the police station and at the police station accused-appellants gave their finger prints and sample finger prints of Gordhan, Vikram @ Vikky and Mahendra were taken into possession vide memos (Ex.P.34, P.35 and P.36 respectively). 35. Learned counsel for the appellants have relied upon Prakash v. State of Karnataka [(2014 Cri.L.J. 2503] wherein it was held that where there is no evidence that the finger prints were taken by the investigating officer under the orders of the Magistrate, manner of taking finger prints cannot be held credible and same cannot be construed against the accused. We will reproduce Paras-46 and 47 of the judgment in the case of Prakash (supra) as under:- "46. Assuming Prakashs fingerprint was in fact obtained by DSouza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the Investigating Officer was to approach the Magistrate for necessary orders in accordance with section 5 of the Identification of Prisoners Act, 1920. In Mohd. Aman v. State of Rajasthan (1997) 10 SCC 44 this Court referred to the possibility of the police fabricating evidence and to avoid an allegation of such a nature, it would be eminently desirable that fingerprints were taken under the orders of a Magistrate. We may add that this would equally apply to the creating evidence against a suspect. This is what this Court had to say: "Even though the specimen fingerprints of Mohd. We may add that this would equally apply to the creating evidence against a suspect. This is what this Court had to say: "Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate." 47. The Karnataka High Court has taken the view [State of Rural Police v. B.C. Manjunatha, ILR 2013 Karnataka 3156] that it is not incumbent upon a police officer to take the assistance of a Magistrate to obtain the fingerprints of an accused and that the provisions of the Identification of Prisoners Act are not mandatory in this regard. However, the issue is not one of the provisions being mandatory or not - the issue is whether the manner of taking fingerprints is suspicious or not. In this case, we do not know if Prakashs fingerprint was taken on 7th November, 1990 as alleged by him or later as contended by the Investigating Officer, or the circumstances in which it was taken or even the manner in which it was taken. It is to obviate any such suspicion that this Court has held it to be eminently desirable that fingerprints are taken before or under the order of a Magistrate. As far as this case is concerned, the entire exercise of Prakashs fingerprint identification is shrouded in mystery and we cannot give any credence to it." 36. We may also add here that possibility cannot be ruled out that sample finger prints and alleged finger prints taken from the spot may have been prepared at the police station. Shri A.K. Gupta has contended that possibility cannot be ruled out that on the same day, in same process, chance prints and sample prints, may have been taken at the police station. As the memo of chance finger print (Ex.P.32) whereby chance prints allegedly were taken from the spot is attested by Ramjilal and Kishori Lal (P.W.1). Shri A.K. Gupta has contended that possibility cannot be ruled out that on the same day, in same process, chance prints and sample prints, may have been taken at the police station. As the memo of chance finger print (Ex.P.32) whereby chance prints allegedly were taken from the spot is attested by Ramjilal and Kishori Lal (P.W.1). Ramjilal has not been examined by the prosecution. Kishori Lal (P.W.1) in his examination-in-chief has not stated a word about lifting of chance finger prints in his presence from the spot. We may reproduce the relevant portion of examination-in-chief of Kishori Lal (P.W.1) as under:- ^^iqfyl us fjiksVZ izn'kZ ih0 1 eq>s i<+dj lquk nh FkhA iqfyl us fc[kjk gqvk lkjk lkeku ns[kk Fkk tgka esjh iRuh iM+h Fkh ogka ls iqfyl us feV~Vh mBk;h FkhA ¼iqfyl us uD'kk ekSdk Hkh cuk;k FkkA uD'kk ekSdk izn'kZ ih0 2 uD'kk ekSdk cuk;k FkkA½** 37. The witness has only stated that the police had lifted soil and had prepared site plan (Ex.P.2). The witness in his testimony is totally silent regarding memo (Ex.P.32) whereby chance finger prints were lifted from the articles lying in the house. Thus, on facts also we cannot rely upon the report (Ex.P.43) submitted by the Director, Finger Prints Bureau, Rajasthan, Jaipur that sample finger prints tallied with the chance finger prints as no independent or for that matter any witness to the recovery memo have supported lifting of chance finger prints from the scattered goods in the house. At the sake of repetition, it is stated that Exhibit-P.32 was attested by Ramjilal and Kishori Lal. Ramjilal has not been examined and Kishori Lal is silent on this aspect before the court. In these circumstances, we cannot rely on the statement of the police personnel especially when finger prints of the accused were not taken under the orders of the Magistrate. In Paramasivam @ Paraman @ Kottiyan and Anr. v. State of Tamil Nadu [J.T. 2002 (8) SC 214] it was held as under:- "4. Before proceeding further, however, the learned advocate placed a strong reliance on a decision of this Court in Mahmeed v. State of U.P., 1976 CRI.L.J. 10 as regards the finger prints and its admissibility wherein this Court in paragraph 16 of the report was pleased to observe as below : "16. Before proceeding further, however, the learned advocate placed a strong reliance on a decision of this Court in Mahmeed v. State of U.P., 1976 CRI.L.J. 10 as regards the finger prints and its admissibility wherein this Court in paragraph 16 of the report was pleased to observe as below : "16. Furthermore, the specimen fingerprints of the appellant were not taken before or under the order of a magistrate in accordance with section 5 of the Identification of Prisoners Act. This is another suspicious feature of the conduct of investigation. It has not been explained why this magistrate was kept out of the picture." 5. Admittedly there has been no magistrate's presence or order in that regard and in that view this Court has expressed that in terms of the statutory provisions, the question of relying thereon would not arise. Reliance on PW 16 by the High Court thus possibly cannot be had by reason of the non-admissibility as noticed by this Court in Mahmood (supra)." 38. A similar view was reiterated by the Hon'ble Apex Court in Mohd. Aman and another v. State of Rajasthan [ AIR 1997 SC 2960 ]. Circumstance-III, Evidence of foot moulds: 39. A.S.I. Ram Singh (P.W.14) has deposed in court that on 22.9.2007 vide memo (Ex.P.31) in presence of Kishori Lal (P.W.1) and Ramjilal, two foot moulds were lifted. Ramjilal has not been examined and as stated earlier, Kishori Lal (P.W.1) has not deposed that any foot moulds were lifted in his presence from the spot. He is totally silent on this count. It has further come in evidence that on 30.9.2007 vide memo (Ex.P.20) sample foot moulds of each accused appellants were also prepared. A Division Bench of this court in Sunder & Ors. v. State of Rajasthan [D.B. Criminal Appeal No.1011/2012, decided on 27.1.2015] to which one of us (K.S. Ahluwalia, J.) was a Member, taking into consideration the Rajasthan Police Rules, has held as under:- "But according to the site plan (Ex. P. 4) the footprints were not lifted from the courtyard, or from near the dead bodies. According to the site plan (Ex. P. 4) the dead body was lying in a room marked as A. But the footprints were lifted from outside the house, at a place marked as X and X2. It is, indeed, an old adage that "man may lie, but circumstances do not". According to the site plan (Ex. P. 4) the dead body was lying in a room marked as A. But the footprints were lifted from outside the house, at a place marked as X and X2. It is, indeed, an old adage that "man may lie, but circumstances do not". The site plan (Ex. P. 4) is a contemporaneous document. According to Sunder Singh (P. W. 11) the site plan is correct and depicts the way the things were found. Therefore, even if Sunder Singh (P.W.11) and Prahlad Swaroop (P.W. 22) claim that the footprints were lifted from near the dead bodies, their testimonies are belied by the site plan (Ex.P.4). Moreover, there is a contradiction between the testimony of Prahlad (P.W.22) and testimony of Sunder Singh (P.W.11) with regard to the time when the footprints were lifted. According to Prahlad (P.W.22), the footprints were lifted around 4:00 PM in the evening; according to Sunder Singh (P.W.11), the footprints were lifted at 8:00 Oclock in the morning. It is also pertinent to note that according to Charan Singh (P.W.1), Balbeer (P.W.2), Sunita (P.W.7), Mani (P.W.8), Sunder Singh (P.W.11), Jagdish (P.W.13), the villagers had been coming and going in and around the house. Thus, it is unclear as to whose footprints were lifted from the scene of the crime. It is equally unclear from where were they lifted, and at what time they were lifted from the scene of the crime. Most importantly, Prahlad Swaroop (P.W.22) has clearly admitted that the footprints were not lifted before a Magistrate. Therefore, the lifting of the footprints from the scene of the crime is enigmatic. Rule 6.26 of the Rajasthan Police Rules, 1965 is as under:- "6.26. Importance of footprints and track evidence.- (1) Footprints are of the first importance in the investigation of crime. For this reason all officers in-charge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime. For this reason all officers in-charge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime. (2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for the identification of suspects. The attendance of a magistrate of the highest available status, shall be secured or, if that is impossible, independent witnesses of reliable character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity with the reasonable directions which they may give, ground shall be prepared for the tests. On this ground the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police officer conducting the test, shall record the names of all these persons and the order in which they enter the test ground. While these preparations are preceding the tracker or other witness, who is to be asked to identify the tracks shall prevented from approaching the place or seeing any of the persons concerned in the tests. When all preparations are complete the witness shall be called up and required to examine both the original tracks and those on the test ground, and thereafter to make his statement. The magistrate, or in his absence, the police officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bona fides. The officer investigating the case and his assistants shall be allowed no share in the conduct the test. Tracks found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer. The officer investigating the case and his assistants shall be allowed no share in the conduct the test. Tracks found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer. The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given a fair chance, but under the strictest safeguards, of comparing with the original tracks, other tracks made on similar ground and in similar conditions. (3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of the criminal or criminals found at the scene of the crime. In making moulds for production as evidence the following precautions should be observed:- (a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds. (b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting. (c) After the procedure described in Sub-rule (2) above has been completed a mould should be prepared in the presence of the Magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the Magistrate or witnesses when still setting. (d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court." Thus, Rule 6.26 (3) requires that prior to taking the impression of the footprints and before making a mould, the footprints found on scene of the crime must be pointed out to reliable witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. The said moulds have to be signed either by the Magistrate, or the witnesses. According to Rule 6.26 (3) (d), during the course of trial the mould should be produced in the court for identification by the witnesses and comparison by the court. However, in the present case, according to Prahlad (P.W.22), the footprints were not lifted from the place of the occurrence in front of a magistrate. They were, in fact, lifted in front of Jagdish. But Jagdish is not an independent witness as he is one of the sons of the deceased. Furthermore, according to Jagdish (P.W.13), the moulds of the footprints were not produced before the trial court during his testimony for his identification and for comparison by the court. Therefore, the procedure established by the rules has not been followed. Moreover, the second recovery witness, Kunwar Singh, has not been produced by the prosecution. Thus, a material witness has been withheld by the prosecution. Therefore, considering the contradictions between the witnesses, considering the contradiction between the testimonies of the witnesses and the site plan, considering the fact that the procedure prescribed by law has not been followed, considering the conduct of the prosecution in withholding an independent witness of recovery from the court, the recovery of the footprints from the scene of the crime cannot be believed. According to Prahlad (P.W.22), even when he had taken the footprints of the appellants in the police custody, the Magistrate was not present. Section 4 and Section 5 of the Act of 1920 are as under:- "4. Taking of measurements, etc., of non-convicted persons. - Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 5. Power of Magistrate to order a person to be measured or photographed. - Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 5. Power of Magistrate to order a person to be measured or photographed. - If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898) [now, Code of Criminal Procedure, 1973 (2 of 1974)] it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding." Section 5 prescribes the manner in which the measurement of a non-convicted person is to be taken. Therefore, before a foot impression of an accused can be taken during the course of investigation, the procedure as laid down by Section 5 has to be followed. A magistrate has to be satisfied in order to direct the person to allow his measurements or photographs to be taken. The said order has to be passed by the magistrate of the First Class. However, in the present case no such order has been passed by the magistrate of the First Class directing the appellants to allow the police to take their footprints. According to Rule 6.26 of the Rajasthan Police Rules, 1965 the procedure for securing the record of such footprint shall be similar to that prescribed for holding a T.I. parade of suspects under Rule 7.31. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. For, according to Exhibit-P.34 the footprints were lifted before two Police Constable, namely Dayanand and Ghamsi Ram. The investigating officer, Gopal Singh (P.W.30) has not given any explanation for non-procuring of the Magistrate of the highest rank, and for non-procuring of a witness of reliable character. Further, Ghamsi Ram (P.W.23) admits in his cross-examination that "the names of the accused were not tagged with the impression of their foot. It is true that at the time of taking the foot impression by Exhibit-P.34, only police personnel were present and no outside person was present at that time. No person from outside was called. It is true that the foot impressions which were taken are not before me in the court. It is true when the foot impressions were taken, a Magistrate was not present at that time". The other witness to this recovery, Dayanand, has not been produced by the prosecution. Thus, again the prosecution has withheld a material witness. Further, the procedure prescribed by law has been flouted by the investigating agency. Neither a magistrate, nor independent witnesses have been associated with taking of the footprints and the foot moulds of the appellants during police custody. Considering the fact that the entire case is based on circumstantial evidence, considering the fact that the prosecution has failed to prove as to where the footprints were lifted from the place of the occurrence, considering the fact that the procedure for lifting the footprint has been flouted, considering the fact that according to Ghamsi Ram (P. W. 23), the foot prints lifted during the police custody were not even tagged with the names of the appellants, the report of the FSL (Ex.P.50) loses all its significance. The said report claims that the footprints lifted from the scene of the crime and the footprints of the accused match perfectly. But the footprint taken by the police seem to be padding made by the police in order to strengthen its case based on circumstantial evidence. Hence, the evidence of the recovery of the footprints of the appellants is clearly unreliable. But the footprint taken by the police seem to be padding made by the police in order to strengthen its case based on circumstantial evidence. Hence, the evidence of the recovery of the footprints of the appellants is clearly unreliable. In the case of Leelaram & Ashok v. State of Rajasthan [2008(1) RLW 745], this court had expressed its opinion that foot impression mould should be taken either before a magistrate, or at his direction, or under his order. In the case of Mohd. Aman v. State of Rajasthan [ (1997) 10 SCC 44 ], the Apex Court has disbelieved the evidence of footprint inter alia on the ground that the sample was not taken before a magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Sigh and Anr. v. State of Punjab 1996 (6) SCALE 72 the Honble Supreme Court opined that where the prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellants. Therefore, this court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellants." 40. Relying upon above judgment we find that necessary safeguard qua foot moulds to quell suspicion have not been assured by the investigation agency. Non-examination of Ramji Lal, and silence on part of Kishori Lal (P.W.1) qua this important part make this piece of evidence doubtful and hence same is also excluded from consideration. 41. Having discarded Circumstances-I, II and III relied by the prosecution regarding the fact that accused were seen around the place of occurrence, lifting of finger prints and foot moulds, we are left with the recoveries made from the accused. 42. Circumstance-IV, Recovery of various articles affected from the appellants: Murlidhar (P.W.2) has presented list (Ex.P.10) in which articles allegedly stolen from the house of the deceased were mentioned. It has come in evidence that Murlidhar was staying at Chandigarh. 42. Circumstance-IV, Recovery of various articles affected from the appellants: Murlidhar (P.W.2) has presented list (Ex.P.10) in which articles allegedly stolen from the house of the deceased were mentioned. It has come in evidence that Murlidhar was staying at Chandigarh. It has also come in evidence that the deceased used to lend money. It has also come in the testimony of Kishori Lal (P.W.1) that his sons used to visit them once a year. Therefore, we are circumspect whether Murlidhar who lives at Chandigarh and comes to visit his parents once in a year would having knowledge of all the articles or not. Be that as it may, it is to be noted that the stolen articles were recovered from all the three accused vide recovery memos (Ex.P.11, P.12 and P.13). Gordhan allegedly got recovered vide memo (Ex.P.11) from his house one ladies purse having cash of Rs. 156/-, one necklace having moorti of Sheomata containing 25 silver pendents. Mahendra accused vide memo (Ex.P.12) got recovered eight silver coins, two silver Athannies, one ladies watch, one pair of silver Payjeb and one silver chain. Similarly, Vikram @ Vikky accused vide memo (Ex.P.13) got recovered 12 silver coins, two earrings, three chains containing one gold flower at the end and one nose pin. All three memos (Ex.P.11, P.12 and P.13) respectively were attested by Dinesh Kumar and Kailash. Both these witnesses have not been examined. Recovery of above articles has not been proved through Murlidhar (P.W.2) who has not attested the memos. Thus, the witnesses who attested the memos are not present before the court and the witness who has not signed the documents supports the recovery. In these circumstances, to us, it will not be safe to rely upon the documents (Ex.P.11, P.12 and P.13). 43. Furthermore, recoveries have been affected in pursuance of the disclosure statement made by the accused. Mahendra suffered disclosure statement (Ex.P.37), Vikram @ Vikky suffered disclosure statement (Ex.P.39) and Gordhan suffered disclosure statement (Ex.P.41). All three disclosure statements (Ex.P.37, P.39 and P.41) suffered by three accused are not attested by any witness. 44. In Rameshwar and Dinesh @ Pillu v. State of Rajasthan, [D.B. Criminal Appeal No.158/2010, decided on 10.11.2014], a Division Bench of this court in which one of us (K.S. Ahluwalia, J.) was a member relying upon Harjit Singh & Ors. All three disclosure statements (Ex.P.37, P.39 and P.41) suffered by three accused are not attested by any witness. 44. In Rameshwar and Dinesh @ Pillu v. State of Rajasthan, [D.B. Criminal Appeal No.158/2010, decided on 10.11.2014], a Division Bench of this court in which one of us (K.S. Ahluwalia, J.) was a member relying upon Harjit Singh & Ors. v. State of Punjab [AIR 2002 Supreme Court 3040] has held 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. v. 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. Since Section 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.". 45. We cannot also become oblivious of the fact that the articles recovered were not mixed-up with articles of similar nature. Rather Murlidhar (P.W.2) has stated that after the articles were shown to him, only those articles which were identified by him were taken into possession by the police. Thus, in the present case, alleged identification of articles was carried before there articles were taken into possession. Similar articles are available in market in plenty, thus possibility they may belong to the accused also cannot be ruled out. Thus, in the present case, alleged identification of articles was carried before there articles were taken into possession. Similar articles are available in market in plenty, thus possibility they may belong to the accused also cannot be ruled out. There is no specific mark of identification to show that these articles only belonged to the deceased and nobody else. Thus, for the reasons enumerated above, to us, it is not safe to rely upon the recoveries affected from the accused. 46. As a result of above discussion, we are of the view that all incriminating circumstances relied by the prosecution are not of sterling quality to be taken into consideration for upholding the conviction of the accused. The incriminating circumstances brought on record by the prosecution are accompanied by doubt. There are enough reasons, noted by us to doubt the circumstances brought on record by the prosecution. Thus, we are of the view that it is not safe to uphold the conviction and sentence of the accused-appellants. 47. Consequently, all the three appeals are accepted. Conviction and sentence awarded by the trial court upon the accused-appellants is set aside. They are acquitted of the charges framed against them. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellants, namely Vikram @ Vikky, Mahendra and Gordhan, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount each, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court. Appeal Allowed.