Hon'ble AHLUWALIA, J.—Vasu alias Vasudev, Bawan alias Baban Yadav were nominated as accused in case arising out of FIR No.298/2003 registered at Police Station Galta Gate, Jaipur, for offence under Sections 302/201/120B IPC. The Court of Addl. Sessions Judge (Fast Track) No.1, Jaipur City, vide impugned judgment dated 31.8.2004 held Vasu alias Vasudev guilty of offence under Section 302 and 201 IPC, whereas appellant Bawan alias Baban Yadav son of Nanak was convicted for offence under Section 302/120B and 201 IPC. Having convicted the appellants for the said offences, vide separate order of even date both the appellants were sentenced as under:- 2. Appellant Vasu alias Vasudev was sentenced for offence under Section 302 IPC to undergo life imprisonment and pay a fine of Rs.500/-, in default thereof to suffer six months' rigorous imprisonment. For offence under Section 201 IPC appellant Vasu alias Vasudev was sentenced to undergo seven years' rigorous imprisonment and pay a fine of Rs.500/-, in default thereof to undergo rigorous imprisonment for six months. 3. Appellant Bawan alias Baban Yadav for offence under Sections 302/120 IPC, was also sentenced to undergo life imprisonment and pay a fine of Rs.500/-, in default thereof to undergo six months' rigorous imprisonment. Similarly for offence under Section 201 IPC this appellant was sentenced to undergo seven years' rigorous imprisonment and pay a fine of Rs.500/-, in default thereof to undergo six months' rigorous imprisonment. 4. Sentence awarded upon both the appellants on both the counts were ordered to run concurrently. 5. Aggrieved against their conviction and sentence, both the appellants have filed two separate appeals. Vasu alias Vasudev has instituted Criminal Appeal No.1085/2004, whereas Bawan alias Baban Yadav has filed Criminal Appeal No.126/2005. By this common judgment, we shall decide both the appeals. 6. Criminal proceedings were set into motion on the written complaint (Exhibit-P.1) submitted by Sub-Inspector Dinesh Kumar (P.W.1). He submitted the report (Exhibit-P.1) before the In-charge of Galta Gate Police Station. In the said report he submitted that on 10.10.2008, at about 4:40 AM, he along with Constable Sube Singh, was on patrol duty. They were coming from Idgah towards Delhi By-pass road. When they reached the culvert (??????) No.1 near Meena Petrol Pump, he saw a dead body of an unidentified person. When he went near the dead body, he noticed that there were injuries on the neck of the deceased. They were coming from Idgah towards Delhi By-pass road. When they reached the culvert (??????) No.1 near Meena Petrol Pump, he saw a dead body of an unidentified person. When he went near the dead body, he noticed that there were injuries on the neck of the deceased. There were other four injuries on the back of the neck also. Near the dead body, blood was lying on the spot. Since no information was available regarding the where-abouts of the deceased, he gave description of the particulars of the dead body, in the FIR, stating that it was dead body of a person of wheatish colour, having black hair. He specified other marks and details of the clothes worn by the deceased. The above said FIR was investigated. The Investigating Agency, during investigation nominated the present appellants as one who had committed the offences, and submitted the report of investigation under Section 173 CrPC. 7. The report of investigation along with the accused were committed to the court of Sessions. Trial of the case was entrusted to Addl. Sessions Judge No.1, Jaipur. The Trial Judge charged appellant Vasudev for offence under Sections 302 and 201 IPC, whereas Bawan alias Baban Yadav was charged for offence under Sections 302/120B and 201 IPC. Charge against Vasudev stated that on the intervening night of 9th and 10th of October, 2003, he committed the murder of Rajendra son of Jethu near Meena Petrol Pump on Delhi by-pass road by hatching conspiracy along with co-accused Bawan, and Rajendra was murdered by causing injuries with knife and there were eleven injuries on his person, and thus appellants had committed offence of murder punishable under Section 302 IPC. Both the appellants pleaded not guilty, and claimed trial. Prosecution commenced its evidence. 8. Dinesh Kumar (P.W.1) reiterated as to what was stated by him in the FIR. 9. Laxman (P.W.2) stated that in his presence police had prepared specimen molds of the feet of the accused, and had also taken sample of hair by cutting about fifteen hairs of each accused vide Exhibit-P.4. This witness further stated that vide Exhibit-P.5 Investigating Agency had also taken specimen mold of marks of rickshaw tyre. 10. Ramlal Arya (P.W.3) deposed that on 11.10.2003 in his presence police had arrested both the accused vide arrest memos Exhibit-P.6 and P.7. 11. This witness further stated that vide Exhibit-P.5 Investigating Agency had also taken specimen mold of marks of rickshaw tyre. 10. Ramlal Arya (P.W.3) deposed that on 11.10.2003 in his presence police had arrested both the accused vide arrest memos Exhibit-P.6 and P.7. 11. Phool Bano (P.W.4) stated that three four months before her deposition in court, she had lost her daughter. She had gone to Galta Gate Police Station to make a report and found a person lying near Meena Petrol Pump and she assumed that he had consumed liquor. 12. Alisher (P.W.5) stated that Ramdas, a relative of accused Bawan, was tenant with him. On 14.10.2003 police brought accused Bawan to his plot. Bawan went inside the room of Ramdas and got recovered articles belonging to rickshaw which included two paddles, one frame of rickshaw, and three tyres. He further stated that handle of rickshaw and spare parts of rickshaw were also recovered by the police. Police officials informed him that some murder had taken place at Galta Gate and the rickshaw is a material evidence relating to the murder. He stated that articles of the rickshaw were taken into possession by police in his presence and in presence of Jitendra Bihari. Police had taken thirteen-fourteen items. However, the witness was not aware of the exact number of the parts taken into possession by the police. In cross-examination this witness stated that seat of the rickshaw was not recovered from his premises. 13. Kishori Sahu (P.W.5) stated that Vasu and Bawan, accused present in court, along with Anuj and Vijay, used to reside with him. Mahendra and Rajendra - deceased, also used to reside with him. As to who killed Rajendra, he had no knowledge. Rajendra was killed four months before Diwali. This witness further stated that he plies rickshaw. He further stated that he reached his house while coming from Ramganj at 11:00 PM. At that time every body including Vasu, Bawan, Rajendra, Vijay, and Mahendra, after taking meals were sleeping. He also took meals and slept. When in the morning at 6:00 AM he woke up, he found that neither Bawan, nor Mahendra, nor Rajendra were present. Only Vijay and Anuj met him. Two days later he learnt about the death of Rajendra. He had identified photograph of Rajendra at Police Station and proceeding to this effect were noted in memo Exhibit-P.2. When in the morning at 6:00 AM he woke up, he found that neither Bawan, nor Mahendra, nor Rajendra were present. Only Vijay and Anuj met him. Two days later he learnt about the death of Rajendra. He had identified photograph of Rajendra at Police Station and proceeding to this effect were noted in memo Exhibit-P.2. This witness was declared as hostile by the prosecution and was cross-examined by the Assistant Public Prosecutor. In cross-examination he stated that in the morning when he woke up, Vasu and Bawan were in the room, but Rajendra was not there. He was duly confronted with his previous statement. In cross-examination by the Assistant Public Prosecutor he further stated that Rajendra was having an affair with Vasu's wife, and due to this relations between both of them were strained. In cross-examination by the counsel for the accused, he stated as to when Rajendra used to make telephonic call to wife of Vasu, it is not known to him. 14. It is to be noted that so far as accused Vasu is concerned, no opportunity of cross-examination was granted to him as on the day the witness was being examined, his cross-examination was deferred due to condolence, and thereafter the witness was never recalled. 15. Parasram (P.W.6) stated that he knew Vasu and Bawan. Both were arrested by police in his presence vide Exhibits-P.6 and P.7 respectively. He further stated that no knife was recovered from Vasudev. A blue shirt was recovered from his room by the police vide Exhibit-P.12. Police had also prepared site-plan of the spot from where the shirt was recovered, vide Exhibit-P.13. He stated that knife, Exhibit-P.14, was not recovered in his presence. Both memos bear his signatures. This witness was declared hostile by the prosecution and was cross-examined by the Assistant Public Prosecutor. This witness in cross-examination stated that he had not seen any knife. He further stated that when he signed Exhibit-P.14, whereby knife in question was recovered and same was already prepared. He further stated it to be correct that Exhibit-P.14 was not read to him. 16. Kamal Nainaniya (P.W.7) also denied recovery of knife from accused Vasu. He was also declared hostile by the prosecution. 17. Jagdish Sharma (P.W.8) stated that he is resident of Mandi Khatikan. He plies rickshaw and also gives rickshaws on hire. He further stated it to be correct that Exhibit-P.14 was not read to him. 16. Kamal Nainaniya (P.W.7) also denied recovery of knife from accused Vasu. He was also declared hostile by the prosecution. 17. Jagdish Sharma (P.W.8) stated that he is resident of Mandi Khatikan. He plies rickshaw and also gives rickshaws on hire. He is owner of thirty-two rickshaws, and used to give one rickshaw on a daily basis, at hire charges of Rs.15 per day. He stated that accused Vasu came to him six seven months ago along with one boy, Rajendra. He had asked him to give rickshaw on hire to Rajendra. And on the assurance given by Vasu, he had given rickshaw to Rajendra. The rickshaw which was given to Rajendra upon that mark J.S. 26 was written. Rajendra used to stay at Shyampuri. He stated that police came to his house and had shown him a photograph Exhibit-P.2, from which he identified the person in the photograph as Rajendra. 18. Arjun Kumar (P.W.9) stated that Rajendra was his cousin. He used to ply rickshaw. Rajendra, Vasu, Bawan, Mahendra, Kishori and Anuj were staying together. He stated that Vasu was not having any illicit relation with wife of Rajendra. He learnt about the death of Rajendra in the month of October. Police had taken him to Galta Gate Police Station and shown him a photograph Exhibit-P.2. He stated that Police Station was informed by Mahendra that Vasu and Bawan may have committed murder of Rajendra. He stated that Rajendra had illicit relation with wife of Vasu. He further stated that Vasu admitted his guilt before the Incharge of Police Station. He stated that he had made report Exhibit-P.15 to the police. This witness was declared as hostile by the prosecution. 19. Mohd. Faiyaz (P.W.11) stated that he had registered formal FIR on the basis of complaint Exhibit-P.1. 20. Dr. Atul Saxena (P.W.13) stated that on 12.10.2003 he had examined accused Vasu and had found one injury on little finger of right hand. 21. Ramphool (P.W.14) was posted as Constable at Galta Gate Police Station. He had proved link evidence as he took sealed samples to the Forensic Science Laboratory. 22. Similarly, Arjun Lal (P.W.15) another Constable, on 22.10.2003 had carried samples to the Forensic Science Laboratory. 23. Constable Mahaveer Prasad (P.W.16) was In-charge of the Malkhana. He was also examined to prove the link evidence. He had proved link evidence as he took sealed samples to the Forensic Science Laboratory. 22. Similarly, Arjun Lal (P.W.15) another Constable, on 22.10.2003 had carried samples to the Forensic Science Laboratory. 23. Constable Mahaveer Prasad (P.W.16) was In-charge of the Malkhana. He was also examined to prove the link evidence. 24. Ramesh Chand (P.W.17) was posted as Assistant Sub-Inspector in MOB Branch (Mold Operated Bureau). He had taken molds of the mark of the rickshaw tyre, and foot molds of right foot of an unidentified person. 25. Sube Singh (P.W.18) was posted as Constable, and he was a member of the Patrol Party headed by Assistant Sub-Inspector Dinesh(P.W.1). He deposed regarding recovery of dead body of an unidentified person from near the Petrol Pump on Delhi by-pass road. 26. Ramesh Kumar Sharma (P.W.19) stated that site-plan, Exhibit-P.13, bears his signatures, but the police had not taken any footprint in his presence. 27. Dinesh Kumar (P.W.20) stated that site-plan Exhibit-P.3, Panchnama Exhibit-P.30, Exhibits-P.28 and P.29 contain his signatures, but the police had obtained his signatures on blank papers. This witness was also declared as hostile by the prosecution. 28. Mohan Lal (P.W.21) stated that he was posted as a Photographer in Photo Section of Police Control Room. He had reached the spot and had taken photographs of the dead body. 29. Dr. Rakesh Kumar Punia (P.W.22) being Sr. Medical Jurist, on 12.10.2003 had conducted autopsy on the dead body, and had found seven incised injuries on the person of the deceased. 30. There is no denying of the fact that due to causing of the injuries, Rajendra, the deceased, had died. 31. Vidydhar Singh Dudi (P.W.24) being Investigating Officer, proved various facets of the investigation. 32. Jeetendra Yadav (P.W.25) stated that accused Bawan got various parts of rickshaw recovered from his house, vide memo Exhibit-P.8. Prosecution closed its evidence. 33. Thereafter the statements of the accused were recorded under Section 313 CrPC. All incriminating evidence was put to them. They pleaded innocence and false implication. 34. We have heard Shri Vinay Pal Yadav, the learned counsel for Vasu alias Vasudev. As is evident from the gist of evidence reproduced by us above, no body had seen anybody committing the murder. It is not a case of direct evidence as no eye-witness has come forward. The case of prosecution rests on circumstantial evidence. 34. We have heard Shri Vinay Pal Yadav, the learned counsel for Vasu alias Vasudev. As is evident from the gist of evidence reproduced by us above, no body had seen anybody committing the murder. It is not a case of direct evidence as no eye-witness has come forward. The case of prosecution rests on circumstantial evidence. The prosecution, in order to prove guilt of the accused, has relied on the following circumstances:- (a) Recovery of knife from accused Vasu alias Vasudev. (b) Recovery of blood stained blue shirt, having blood stains pertaining to group 'AB', from accused Vasu alias Vasudev (c) Spare parts of the rickshaw allegedly hired by deceased Rajendra, were recovered from accused Bawan alias Baban Yadav. (d) Accused Vasu alias Vasudev had motive to commit crime as Rajendra was having illicit relation with wife of accused Vasu alias Vasudev. 35. So far as motive is concerned, the case of the prosecution is inherently improbable. Prosecution has led evidence to prove that accused, and deceased, being Bihari immigrants were staying in rented premises and their families were not staying with them. Accused had facilitated hiring of rickshaw by Rajendra, as to how, there could be illicit relations, when wives were staying in Bihar and accused were staying at Jaipur, prosecution case is bereft of details. P.W.5 Kishori Sahu admitted in cross-examination by the Assistant Public Prosecutor that Rajendra was having illicit relation with wife of Vasu. However, we cannot construe this circumstance against accused Vasu as no opportunity was afforded to the counsel for Vasu to cross-examine Kishori Sahu (P.W.5), as due to condolence, statement of this witness was deferred and he was subsequently never recalled and, thus, counsel for Vasu could not cross-examine the witness. Even otherwise, Arjun Kumar (P.W.9) who is maternal brother of Rajendra, even though stated that Rajendra was having illicit relation with wife of Vasu, later clarified that accused Vasu told this fact during interrogation. Besides improbability, we are of the view that any statement made by the accused during interrogation is hit by Section 25 of the Indian Evidence Act, and cannot be used against him, as anything said by an accused before the police, is inadmissible in evidence. Thus, we are of the view that the prosecution has failed to prove motive on the part of accused Vasu alias Vasudev. 36. Thus, we are of the view that the prosecution has failed to prove motive on the part of accused Vasu alias Vasudev. 36. So far as recovery of knife is concerned, both the independent witnesses joined by the police, namely Parasram (P.W.6) and Kamal Nainaniya (P.W.7) have denied any recovery of knife from the accused. Both the witnesses have turned hostile. We may also notice that Forensic Science Laboratory has not found any blood stains on the knife. 37. So far as recovery of the clothes and blood stains thereupon are concerned, it is true that the Forensic Science Laboratory has found that the clothes recovered from the accused were having blood stains of blood group 'AB'. It is to be noted that prosecution has made no effort to rule out that blood group AB is not of the accused. 38. Already in case of Ajay Gupta alias Omprakash vs. State of Rajasthan, D.B. Cr. Appeal No.39/2005 decided on 5.12.2014, we have relied on judgment of Hon'ble Apex Court rendered in Shankarlal Gyarasilal Dixit vs. State of Mahaashtra, 1981 CrLJ 325 , and hereby reproduce para 28 of the above judgment of Hon'ble Apex Court as under :- “28. The discovery of a blood stain of the B Group measuring 0.5. cm. in diameter on the appellant's pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. 'B' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant's under-pant, he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl.” 39. In view of the above judgment rendered by the Hon'ble Apex Court, we are of the view that even recovery of clothes cannot be relied against the accused. 40. Recovery of parts of rickshaw and their non identification by any witness to the effect that they belonged to the Rickshaw hired by deceased Rajendra, again leads us to the conclusion that this circumstance also cannot be construed against the accused. 41. 40. Recovery of parts of rickshaw and their non identification by any witness to the effect that they belonged to the Rickshaw hired by deceased Rajendra, again leads us to the conclusion that this circumstance also cannot be construed against the accused. 41. Thus, having noted all the facts and circumstances, we are of the view that the prosecution has failed to complete the chain of circumstances to come to the conclusion that only the present two appellants have committed the offence, and it has not been committed by anybody else. Therefore, we shall extend benefit of doubt to both the appellants. 42. Consequently, we accept both the appeals, set aside conviction pronounced and sentence awarded upon the appellants, and acquit them of the charges.