JUDGMENT 1. - Three brothers namely, Nadeem Mohammad, Nafis Mohammad, Naeem Mohammad, along with one Fajju @ Fajlu Rehman, brother-in-law (brother of wife) of Nafis Mohammad were sent for trial in case arising out of FIR No. 316/2003 registered at police station Dadabadi, Kota for offence under Section 365, 302 and 201 IPC. 2. Prosecution claimed that above accused had committed murder of Zakir Hussain aged 24 years. 3. The deceased Zakir Hussain used to ply Auto-rickshaw in Kota city. He had married Shagufta Khan (P.W.5), sister of three accused, namely Nadeem Mohammad, Nafis Mohammad and Naeem Mohammad. Shagufta Khan had married Zakir Hussain against the wishes of her family. The case of prosecution is that the accused being neighbours of Zakir Hussain having not accepted the marriage, nursed a grudge and had a rancour on this count. 4. The case of the prosecution is that the accused on 6.7.2003, abducted Zakir Hussain, committed his murder and threw his body and thereby had taken their revenge. It is also case of the prosecution, though introduced later, as an improvement, that three days before 6.7.2003, one of the accused Naeem Mohammad had threatened the deceased and had caused simple injuries to his brother Mohammad Sadiq (P.W.8). 5. It is not a case of eyewitness account, but the prosecution case rests on circumstantial evidence. 6. The court of Additional Sessions Judge No.2 (Fast Track), Kota, vide impugned judgment dated 31.3.2004, acquitted accused Nadeem Mohammad and Nafis Mohammad. However, vide the same impugned judgment convicted accused Naeem Mohammad and Fajju @ Fajlu Rehman for the offence under Sections 365, 302 and 201 IPC. Having convicted these two accused, vide separate order of even date, the trial court for the offence under Section 302 IPC, sentenced both the accused to life imprisonment and pay a fine of Rs. 2,000/-; in default thereof to further undergo two months' S.I. Both the accused were also sentenced under Section 365 IPC to undergo sentence of five years' R.I. and pay a fine of Rs. 1,000/-; in default thereof, to further undergo one month's S.I. Both the accused were also sentenced under Section 201 IPC to undergo three years' R.I. and pay a fine of Rs. 1,000/-; in default thereof, to further undergo one month's S.I. Sentence awarded on above three counts were ordered to run concurrently. 7. 1,000/-; in default thereof, to further undergo one month's S.I. Both the accused were also sentenced under Section 201 IPC to undergo three years' R.I. and pay a fine of Rs. 1,000/-; in default thereof, to further undergo one month's S.I. Sentence awarded on above three counts were ordered to run concurrently. 7. Aggrieved against their conviction and sentence, both the accused have preferred the present D.B. Criminal Appeal No. 479/2003. 8. Now, it is time for us to recapitulate brief facts emerging in the prosecution case. 9. On 6.7.2003, at about 8:00 PM, Mohammad Hanif, father of the deceased Zakir Hussain, lodged a missing report bearing No. 385, at police station Dadabadi, Kota. The said report has been taken on record as Exhibit-P/29-A. It was stated in the missing report that Mohammad Zakir on 6.7.2003 at 2:30 PM, left the house to ply his auto. Same day, soon before lodging the missing report, Imran son of Kallu (P.W.4) informed the family members of the deceased Zakir Hussain that auto-rickshaw of Zakir Hussain was lying parked near Soyabean Plant. Tape recorder of the auto was on and one chappal was also lying in the auto, but Zakir Hussain was not present near the auto. A request was made by father to the police in missing report that his son be searched. 10. Two days later on 8.7.2003, Shagufta Khan (P.W.5), wife of the missing person Zakir Hussain, along with two brothers of Zakir Hussain namely Mohammad Irshad (P.W.7) and Mohammad Sadiq (P.W.8) presented written application (Exhibit-P/7), on the basis of which, formal FIR (Exhibit-P/30) was registered. In the written report so submitted, it was stated that Shagufta Khan and two brothers of her husband namely Mohammad Irshad and Mohammad Sadiq have learnt that Zakir Hussain is not missing but has been abducted. Information to this effect was relayed to the complainant Shagufta Khan by her friend Shanu. It was further stated that Zakir Hussain was abducted and taken in a truck by Mohammad Nadeem and Idrish @ Bhayyu towards Kota Open University, Rawatbhata road. A apprehension was raised that accused may have liquidated Zakir Hussain. It was further stated that in the conspiracy to abduct, Jafar Mohammad, Nadeem Mohammad, Naeem Mohammad and Idrish were involved. 11. It was further stated that Zakir Hussain was abducted and taken in a truck by Mohammad Nadeem and Idrish @ Bhayyu towards Kota Open University, Rawatbhata road. A apprehension was raised that accused may have liquidated Zakir Hussain. It was further stated that in the conspiracy to abduct, Jafar Mohammad, Nadeem Mohammad, Naeem Mohammad and Idrish were involved. 11. On 11.7.2003, at the instance of acquitted accused, Nadeem Mohammad, accused on the basis of disclosure statement made by him, dead body of Zakir Hussain was recovered. There were marks of violence on the dead body. Dead body was sent for post mortem. Dr. Vivek Goyal (P.W.3), on 11.7.2003 at 1:15 PM, conducted the autopsy. Rigor mortis had passed away, decomposition had set in, face, both upper limb, chest, front and back were mummified. There were six injuries present on the dead body. Injury No.1, was an incised wound on the neck. In the opinion of doctor, cause of death was syncope due to excessive hemorrhage. Witnesses had also identified the dead body. 12. For decision of the present appeal, we need not focus so far cause of death and identification of the dead body is concerned. In peculiar facts and circumstances of the case, in our opinion, these are not material issues for determining conviction of the appellants. 13. Bhagwat Singh Hingad (P.W.17), SHO, police station Dadabadi, Kota, conducted investigation and after conclusion of investigation, had sent four persons as stated earlier, namely Naeem Mohammad, Fajju @ Fajlu Rehman, Nadeem Mohammad and Nafis Mohammad for trial by submitting report of investigation under Section 173 Cr.P.C. After the accused were charged for various offences, trial had commenced. The prosecution examined 17 witnesses and proved 69 documents. 14. As we have noted earlier, the case of the prosecution rests upon circumstantial evidence. We will spell out following as relevant circumstances relied by the prosecution: a) All the four accused, sent for trial had motive to commit the murder. (Motive) b) The prosecution proved medical evidence that Zakir Hussain was murdered due to causing of injuries and it is a case of culpable homicide amounting to murder. We will spell out following as relevant circumstances relied by the prosecution: a) All the four accused, sent for trial had motive to commit the murder. (Motive) b) The prosecution proved medical evidence that Zakir Hussain was murdered due to causing of injuries and it is a case of culpable homicide amounting to murder. (Medical Evidence) c) Fajju @ Fajlu Rehman, the appellant made a disclosure statement (Exhibit-P/41) and in pursuance thereof, vide recovery memo (Exhibit P/1) got recovered one green shirt having full sleeves, which was stained with blood in presence of Naeem Beg (P.W.1) (hostile) and Head Costable Hanuman Singh (P.W.9). (Recovery of blood stained shirt of Fajju @ Fajlu Rehman) d) Fajju @ Fajlu Rehman, the appellant made disclosure statement (Exhibit-P/39) and vide recovery memo (Exhibit-P/6) got recovered knife from the house of Nafis Mohammad (husband of his sister), in presence of Mohammad Sharif (P.W.6), Imran (P.W.4). e) Appellant Naeem Mohammad made a disclosure statement (Exhibit-P/40) and in pursuance thereof got recovered light blue colour pant of tricot vide recovery memo (Exhibit-P/25) from the house of his sister in presence of Nishad (not examined) and Ashgar Ali (P.W.15). f) Appellant Naeem Mohammad made disclosure statement (Exhibit-P/42) and in pursuance thereof got recovered knife vide recovery memo (Exhibit-P/19), which was attested by Abdul Rashid (P.W.13) and Babu Lal (P.W.12). g) Acquitted accused Nadeem Mohammad vide recovery memo (Exhibit-P/11) got recovered dead body of Zakir Hussain in presence of Allauddin (P.W.10) and Ashgar Ali (P.W.15). h) Mohammad Nadeem also got recovered knife vide recovery memo (Exhibit-P/23) in pursuance of disclosure made by him in presence of Mohammad Nishad and Ashgar Ali (P.W.15). i) Nafis Mohammad, acquitted accused vide recovery memo (Exhibit-P/5) in pursuance of disclosure statement (Exhibit-P/38) got recovered Wheel-Pana of auto in presence of Mohammad Sharif (P.W.6) and Imran (P.W.4). j) Nafis Mohammad, in pursuance of disclosure (Exhibit-P/37) vide recovery memo (Exhibit-P/22) got recovered truck, in which purportedly Zakir Hussain was kidnapped. Recovery memo of truck was attested by Mohammad Nishad, who was not examined and Ashgar Ali (P.W.15). 15. The trial Judge came to the conclusion that since police already knew that the dead body was lying at the place from where it was recovered, disclosure statement and the recovery of the dead body, purportedly at the instance of the accused Nadeem Mohammad cannot be construed as an incriminating circumstance. 15. The trial Judge came to the conclusion that since police already knew that the dead body was lying at the place from where it was recovered, disclosure statement and the recovery of the dead body, purportedly at the instance of the accused Nadeem Mohammad cannot be construed as an incriminating circumstance. The court further held that since knife recovered from Mohammad Nadeem was not stained with blood, the same is also to be ruled out from consideration. The trial court further held that since auto pana recovered at the instance of the acquitted accused Nafis Mohammad, was not used for any purpose, the same cannot be used as an incriminating circumstance. Recovery of truck at the instance of Nafis Mohammad similarly was also ignored as it had not advanced the case of prosecution. Hence, by giving above reasoning, the trial court acquitted co-accused of the appellants namely, Nafis Mohammad and Nadeem Mohammad. 16. So far the present two appellants are concerned, the trial court considering motive, recovery of shirt from Fajju @ Fajlu, which as per the report of FSL (Exhibit-P/69) had blood group 'AB' and recovery of pant from accused Naeem Mohammad, which also had blood stains, of same blood group 'AB' as per FSL report and recovery of knife from both the accused, held that so far chain of circumstances qua these two accused is concerned, same is complete and hence, held them guilty of offences. 17. Since the conviction of both the appellants rests upon the recovery of knife and recovery of shirt from Fajju @ Fajlu Rehman and recovery of pant from Naeem Mohammad, we shall deal with these two circumstances. 18. Three knives were sent to Forensic Science Laboratory. They were assigned Exhibit No. 5, 6 and 7 by the Forensic Science Laboratory. On all the three knives, blood could not be detected. The trial court came to the conclusion that since the knife recovered from acquitted accused Nadeem contained no blood stains, he is to be granted benefit and recovery of knife cannot be taken as a circumstance against accused Nadeem Mohammad. We are of the view that the same advantage should also flow to both the appellants namely Naeem Mohammad and Fajju @ Fajlu Mohammad, so far recovery of knife is concerned. 19. We are of the view that the same advantage should also flow to both the appellants namely Naeem Mohammad and Fajju @ Fajlu Mohammad, so far recovery of knife is concerned. 19. Having ignored the recovery of knife which had no blood stains, now we are left with recovery of clothes containing blood stains from two appellants namely, Fajju @ Fajlu Rehman and Naeem Mohammad. As stated earlier, vide recovery memo (Exhibit-P/41) one green shirt containing blood stains, which as per report of FSL were determined having blood group origin of 'AB', and similarly, vide recovery memo (Exhibit-P/25) light blue colour of pant of tericot, having blood stains, which according to the report of FSL also had blood group of 'AB' were recovered. 20. A shirt-pant of deceased, one pant belonging to Naeem Mohammad and one shirt belonging to Fajju @ Fajlu Rehman were sent to FSL. All these four clothes were stained with blood containing blood of 'AB' group. The prosecution intend us to infer that all the four clothes i.e. Two belonging to deceased and one each to the two appellants, since contained same blood group i.e. 'AB', therefore, appellants have committed the murder. No evidence has come on the file of the case that blood group 'AB' was of the deceased Zakir Hussain. Moreover, the prosecution has not proved that blood group 'AB' is not of any of the appellants. 21. Recently, in D.B. Criminal Appeal No. 39/2005 [Ajay Gupta @ Omprakash v. State of Rajasthan], decided on 5.12.2014 , a Division Bench of this Court of which Kanwaljit Singh Ahluwalia, J., was a member, relied upon Shankarlal Gyarasilal Dixit v. State of Maharashtra [1981 Criminal Law Journal 325] , to hold that the prosecution ought to rule out the fact that the same blood group may be of the accused. Para 28 of Shankarlal Gyarasilal Dixit (supra) is thus reproduced: "28. The discovery of a blood stain of the B Group measuring 0.5, cm. in diameter on the appellant's pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murder Sunita. 'B' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. in diameter on the appellant's pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murder Sunita. 'B' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant's under-pant, he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl." 22. Similar view was also reiterated by Hon'ble Supreme Court in Subhash Chandra v. State of Rajasthan [2002 (1) SC 702]. 23. Another feature, which we may notice is that a shirt was recovered from Fajju @ Fajlu Rehman on 16.7.2003 and a pant was recovered from the appellant Naeem Mohammad on 14.7.2003. Both the articles were received by FSL on 26.8.2003. For more than one and a half month, these articles remained in the police station. Clothes of the deceased and accused were not sent separately, they all remained in the police station for long. It is to be noted that Naeem Beg (P.W.1), the witness to recovery of shirt from Fajju @ Fajlu Rehman and Ashgar Ali (P.W.15) witness to recovery of pant from Naeem Mohammad, have turned hostile and have not proved the prosecution case. Therefore, taking sole circumstance that the clothes, belonging to accused recovered at their instance contained blood group 'AB', which was also found on the clothes of the deceased, we cannot sustain the conviction. This only circumstance is not sufficient to complete the chain of circumstances to hold that nobody else except the appellants have committed the offence. Thus, as a matter of abundant caution, we extend benefit of doubt to both the appellants. 24. As a result thereof, we accept the present appeal and set aside the conviction and sentence awarded upon the appellants and acquit them of all the charges.Appeal Allowed. *******