JUDGMENT 1. - Sanjay Jain was murdered between 15.10.2005 to 17.10.2005. His dead body in a gunny bag was found from the jungle of Village Bandha. On 18.10.2005 at 00.40 AM Kamal Jain (P.W.23) submitted a written report (Ex.P.42) before Sanjay Sharma (P.W.32) who was then posted as SHO, Police Station Mahaveer Nagar, Kota. In written report (Ex.P.42), Kamal Jain (P.W.23) stated that on 17.10.2005 at about 10.00 PM in the night he received information from Police Station Vigyan Nagar that dead body of Sanjay Jain S/o. Mahaveer Prasad Jain has been found in a gunny bag in a drain of jungle of village Bandha. It was informed by the complainant that Sanjay Jain had left his house on Saturday i.e. 15.10.2005 for going to his plot at Ghoda Basti. Sanjay Jain had not returned. Upon receipt of information, Kamal Jain (PW.23) alongwith Ritesh Jain (P.W.21) came to the mortuary of MBS Hospital and had identified the dead body to be of Sanjay Jain and they were further informed that Sanjay Jain had died due to strangulation with electric wires. His neck and face were swollen, eyes were protruding out, foul smell was emitted by the dead body. In the written report (Ex.P.42), it was stated that Sanjay Jain has been murdered by unidentified assailants and thereafter his dead body was thrown in the jungle near the drain. In written report (Ex.P.42) legal action was sought against the assailants. On the basis of above written report (Ex.P.42), a formal FIR (Ex.P.43) bearing FIR No.368/05 was registered at Police Station Mahaveer Nagar, Kota. 2. Investigating agency had sent Rampal, his wife Geeta and Ram Swaroop for trial by submitting charge-sheet under Section 173 Cr.P.C. The said charge-sheet was committed to the court of Sessions and was entrusted for trial to the Special Judge, SC/ST (Prevention of Atrocities Cases), Kota. The said court vide impugned judgment dated 28.9.2006 held Rampal, Ram Swaroop and Geeta guilty of offences under Sections 302/34 and 201 IPC and vide a separate order of even date, appellants were sentenced as under:- "U/s. 302/34 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one month simple imprisonment. U/s. 201 IPC: seven years rigorous imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one month simple imprisonment. (Both the sentences were ordered to run concurrently)" 3. 5000/- and in default thereof to undergo one month simple imprisonment. U/s. 201 IPC: seven years rigorous imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one month simple imprisonment. (Both the sentences were ordered to run concurrently)" 3. Aggrieved against their conviction and sentence all the three appellants preferred D.B. Criminal Appeal No.1263/2006 through Shri S.K. Jain, Advocate. Meanwhile, Geeta had also sent appeal through Jail which was registered as D.B. Criminal Jail Appeal No.1796/2007. We club D.B. Criminal Jail Appeal No.1796/2007 with D.B. Criminal Appeal No.1263/2006 and shall decide both the appeals together by way of this judgment. 4. The prosecution in present case has examined 32 witnesses and have proved on record 58 documents being Exhibit-P.1 to Exhibit-P.58. The accused were examined under Section 313 Cr.P.C. Thereafter they examined two witnesses, namely D.W.1 Kishan Lal and D.W.2 Prabhu and have also proved on record six documents, Exhibit-D.1 to Exhibit-D.5. Exhibit-D.3 also contains another document exhibited as Exhibit-D.3/A. 5. Shri S.K. Jain learned counsel for Rampal and Ram Swaroop and Shri Vijyant Nirwan who was appointed as Amicus Curiae qua appellant Geeta have fairly stated that entire case of the prosecution rests on recoveries affected from the accused. They have very emphatically told the court that in the present case neither there is any evidence of last seen, nor extra-judicial confession nor any other incriminating piece of evidence has been gathered by the investigating agency except recoveries affected from the accused. Shri Vijyant Nirwan showing extreme fairness to the court, has stated that though during investigation prosecution intended to prove motive, but same has not come on record as no witness in the court said a word regarding motive. 6. Thus, in the present case question arises whether mere recoveries from the accused are sufficient to come to the conclusion that chain of circumstances is complete to arrive at the conclusion that offence has not been committed by any other person except the accused. Before we answer the question raised by the learned counsel for the appellants, it will be appropriate for us to recapitulate the evidence adduced by the prosecution. 7. Kalyan (P.W.1) stated that near Dussehra he had gone to graze his cattle in jungle of Village Bandha. He saw a gunny bag over which flies were humming. He saw thumb of a man coming out of his socks. 7. Kalyan (P.W.1) stated that near Dussehra he had gone to graze his cattle in jungle of Village Bandha. He saw a gunny bag over which flies were humming. He saw thumb of a man coming out of his socks. He informed the police. Police came and opened the gunny bag and found a dead body of a man who was aged 25-30 years. Face of the dead body was looking burnt. It was a decomposed dead body. This witness attested inquest report (Ex.P.1) and site plan (Ex.P.2). 8. Nimba (P.W.2) is also witness to recovery of dead body. He had attested inquest proceedings (Ex.P.1), site plan (Ex.P.2), photographs of dead body (Ex.P.3) and recovery of electric wire vide Exhibit-P.4 and a driving license of Sanjay Kumar vide Exhibit-P.5. 9. Jeevan Ram (P.W.3) stated that around Dussehra police had obtained his signatures on 5-6 papers. This witness was declared hostile by the prosecution. 10. Ajay Bhargava (P.W.4) has stated that on 15.10.2005 he was going towards his field. Where he saw two persons on Hero Honda motorcycle carrying a gunny bag in between and age of said persons were 30-35 years. On 17.10.2005 he received information that a dead body has been recovered. Therefore, he had drawn a inference that the gunny bag which was being carried by two persons on black coloured Hero Honda motorcycle was qua carriage of dead body. This person has not identified the accused as the one who had carried the dead body. 11. Sita Devi (P.W.5) stated that Sanjay Jain was not known to her. She had no information as to what had happened with Sanjay Jain. She further stated that she had not gone with Sanjay Jain anywhere. She further stated that with Sanjay Jain, she had never gone to Geeta Bai. Geeta Bai was not known to her. This witness was declared hostile by the prosecution and was cross-examined by the learned Public Prosecutor. She denied the contents of statement (Ex.P.6) recorded under Section 161 Cr.P.C. by the police. She further stated that she never made any statement to the police. 12. Basanti Bai (P.W.6) stated that she knew Rampal Chobdar and his wife Geeta, whereas Ram Swaroop was not known to her. The witness further stated that she had not seen anything. She had not seen anybody coming to the house of accused. This witness was also declared hostile. 12. Basanti Bai (P.W.6) stated that she knew Rampal Chobdar and his wife Geeta, whereas Ram Swaroop was not known to her. The witness further stated that she had not seen anything. She had not seen anybody coming to the house of accused. This witness was also declared hostile. She was also confronted with her statement (Ex.P.7) recorded under Section 161 Cr.P.C. The witness denied material portion of her statement recorded by the police. 13. Shankarlal (P.W.7) stated that he knew Rampal and Geeta Bai. They are his neighbours. The witness stated that he is not aware whether any person used to visit Geeta Bai. This witness was also declared hostile by the prosecution. 14. Jain Singh (P.W.8), Abhay Patni (P.W.14), Shailesh Agrawal (P.W.28) are witnesses to recoveries affected from the accused. We shall deal with their testimony later at appropriate stage. 15. Mohd. Rafiq (P.W.9) stated that Sanjay Jain was his friend. He was having a tea vend. He was murdered. He read about his death. The witness further stated that Sanjay Jain had illicit relation with Sita Devi (P.W.5). This witness further stated that in his presence, no monetary transaction had taken place. Dr. Shailendra (P.W.22) was partner of Sanjay Jain and they have purchased a plot. After purchase of plot, Sita (P.W.5) had gone to that plot. 16. Raghuraj Singh (P.W.10) stated that on 28.10.2005 he was posted as Constable at Police Station Mahaveer Nagar. On that day, Jayant Singh had produced Motorcycle recovered in respect of FIR No.368/05. He had recovered motorcycle No.RJ20-13M-6014 from Railway quarters vide Memo (Ex.P.11). 17. A perusal of memo (Ex.P.11) reveal that in pursuance of disclosure statement (Ex.P.10) made by the accused Rampal, he got his motorcycle No.RJ20-13M-6014 recovered from the house of his brother-in-law (Jija) Janki Lal from railway quarters of Deegod. As per investigating agency, this motorcycle was used by the accused Rampal for transporting the dead body in a gunny bag even though no evidence to this effect has emerged in the testimony of the witnesses. Recovery memo (Ex.P.11) is attested by Babulal (P.W.24) and Raghuraj Singh (P.W.10). 18. Satya Narain (P.W.11) stated that on 17.10.2005 he had gone to the spot and had taken photographs of the dead body there. The dead body was tied with an electric wire. This witness further stated that one scooter was parked near the dead body. Recovery memo (Ex.P.11) is attested by Babulal (P.W.24) and Raghuraj Singh (P.W.10). 18. Satya Narain (P.W.11) stated that on 17.10.2005 he had gone to the spot and had taken photographs of the dead body there. The dead body was tied with an electric wire. This witness further stated that one scooter was parked near the dead body. He had also taken photographs of the room where Sanjay Jain was murdered as per disclosure of the accused. 19. Rajeshwar Bhatia (P.W.12) stated that Sanjay Jain was not known to him. He knew accused Rampal and his wife. On 24th he received a telephonic call from Shankar Dayal to the effect that police had come to the house of accused. He had gone to the house of accused where he learnt that police had taken away Rampal and his wife. This witness was declared hostile. 20. Shivcharan Singh (P.W.13) being Head Constable was In-charge of Malkhana. This witness stated that Sanjay Sharma, SHO (P.W.32) had produced before him two packets and four packets in a sealed condition. Four packets were prepared at the hospital. This witness further stated that on 25.10.2005 Sanjay Sharma had deposited a scooter with him bearing No.RJ-28-M-1060. On 28.10.2005 S.I. Jain Singh (P.W.8) had deposited one motorcycle bearing No.RJ20-13M-6014. This witness further stated that sealed packets were handed over to Shriman Lal, Constable (P.W.25) for onward transmission and deposit to FSL at Jaipur. 21. It is to be noted that sealed articles were sent through Shriman Lal (P.W.25) and Balveer Singh (P.W.17). Thus by examining Head Constable Shiv Charan (P.W.13), Constable Balveer Singh (P.W.17) and Constable Shriman Lal (P.W.25), prosecution has proved link evidence. 22. Lad Devi (P.W.15) stated that Sanjay Jain was his son. He was engaged in a real estate business. Earlier, he was having a shop of plywood in a shopping center. This witness further stated that her daughter-in-law Chameli Devi who was Bhabhi of Sanjay Jain was going to teach at Saraswati School. In the said School, Sita Devi (P.W.5) was also working. Sanjay Jain had met Sita Bai who was residing in the house of Premji Meena in Sanjay Nagar, Kota. This witness further stated that she had heard that his son had developed illicit relationship with Sita. On 15th of the month on Saturday Sanjay Jain had left the house on scooter. He was carrying ration card and bank diary. Sanjay Jain had met Sita Bai who was residing in the house of Premji Meena in Sanjay Nagar, Kota. This witness further stated that she had heard that his son had developed illicit relationship with Sita. On 15th of the month on Saturday Sanjay Jain had left the house on scooter. He was carrying ration card and bank diary. Thereafter Sanjay Jain had not returned. 23. Mahaveer Prasad (P.W.16) stated that his son Sanjay Jain was doing work of real estate. On Satudary he left the house on scooter. He had informed him that he is going to visit the plot. When he went out, he was wearing pant, bushirt, shoes of red colour. On 17.10.2005 Kamal Ji and Ritesh Ji asked him as to where Sanjay had gone. He informed them that he had gone to his plot. Upon this, they informed that Sanjay has been murdered and his dead body has been found in a gunny bag. This witness further stated that his son used to talk with one lady named Sita. The witness stated that post-mortem of the dead body was conducted vide Exhibit-P.9. He had identified the dead body and had attested Panchayatnama (Ex.P.38) and supurdagi memo (Ex.P.39). 24. Heeralal (P.W.18) stated that on 18.10.2005 he was posted as S.I. At P.S. Mahaveer Nagar. He had received the written report (Ex.P.42) on the basis of which he registered a formal FIR (Ex.P.43). 25. Satyanarain Nama (P.W.19) and Manoj Jain (P.W.20) had attested Panchanama of the dead body (Ex.P.38). 26. Ritesh Jain (P.W.21) stated that he had gone to the mortuary alongwith Kamal Jain (P.W.23) and had identified the dead body. 27. Shailendra Kumar Vajpai (P.W.22) stated that he knew Sanjay Jain. He had met with him 11/2-2 years ago. He was having one joint plot with Sanjay in Ghoda Basti. Sanjay Jain had come to his house accompanied by a lady named Sita. This witness was declared hostile by the prosecution. 28. Kamal Jain (P.W.23) has stated that on earlier hours of 17.10.2005 he learnt about recovery of dead body. He had gone to the mortuary and had identified the dead body alongwith Ritesh Jain (P.W.21). 29. Chameli Jain (P.W.26) stated that Sanjay Jain was his Dewar. She was teaching in Saraswati School. Sita (P.W.5) was working as a Bai/Peon in the school. Sanjay Jain had a relationship with Sita (P.W.5). He had gone to the mortuary and had identified the dead body alongwith Ritesh Jain (P.W.21). 29. Chameli Jain (P.W.26) stated that Sanjay Jain was his Dewar. She was teaching in Saraswati School. Sita (P.W.5) was working as a Bai/Peon in the school. Sanjay Jain had a relationship with Sita (P.W.5). He had left the house on 15.10.2005 at 9.00 AM. On 17th police informed that Sanjay was murdered. Sanjay had left on scooter. He was carrying papers of purchase of land and pass-book of bank. 30. Ashok (P.W.27) stated that Sanjay Jain was his younger brother. He had left the house on 15th. On that day he was in Gujrat. This witness has raised his suspicion that murder was committed because of Sita. This witness had attested Exhibit-P.35 whereby electric wire was recovered. This witness also attested recovery of plastic bag vide memo (Ex-P.37 and recovery of shoes of deceased vide memo (Ex-P.34). 31. Dr. Ashok Moondada (P.W.29) had conducted autopsy on the dead body. 32. Badrilal (P.W.30) had attested site plan of the spot (Ex.P.2) from where dead body was recovered. 33. Laxmi Narain (P.W.31) had stated that on 17.10.2005 at about 6.00 PM he received a telephonic information from Kalyan Gurjar (P.W.1) that a gunny bag has been found from which thumb of a foot of a human being was visible. 34. Sanjay Sharma (P.W.32) being investigating officer has proved various facets of investigation. 35. Having noted the entire evidence of the prosecution, we shall notice recoveries affected from the accused. 36. Rampal suffered disclosure statement (Ex.P.51) and stated that he can get the scooter of Sanjay Jain recovered from jungle. Disclosure statement (Ex.P.51) is not attested by any witness. Case of the prosecution is that Rampal got scooter recovered vide memo (Ex.P.12) which was witnessed by Abhay Patni (P.W.14) and S.I. Jain Singh (P.W.8). To us, recovery of scooter at the instance of accused Rampal is a padding as it is evident from the evidence of Satya Narain (P.W.11) that when on 17.10.2005 he had gone to take photographs of the dead body, a scooter was parked near the dead body in the jungle. Even otherwise, jungle is an open and accessible place. Thus, we shall exclude recovery of scooter at the behest of Rampal accused. 37. Even otherwise, jungle is an open and accessible place. Thus, we shall exclude recovery of scooter at the behest of Rampal accused. 37. Rampal has suffered another disclosure statement (Ex.P.52) in which he stated that he can get the shoes and purse of the deceased recovered as he had concealed the same in a black colour plastic bag near the drain of jungle from where the dead body was recovered. In pursuance of disclosure statement (Ex.P.52), these articles were got recovered vide memo (Ex.P.34) which was attested by Abhay Patni (P.W.14) and Shailesh Agrawal (P.W.28). It is to be noted that disclosure statement (Ex.P.52) is not attested by any person. 38. Hon'ble the Supreme Court in Harjit Singh & Ors. v. State of Punjab, AIR 2002 SC 3040 , held that disclosure statement should be signed by an independent person and investigating officer should not associate any eye-witness with the recovery memos. In the present case also, no witness what to say of any independent-witness was associated at the time when disclosure statements were made. In Harjit Singh's case (supra) it was held in para 49 of the said judgment, as under:- "49. ...............In the absence of independent witnesses and the alleged place of concealment being accessible to public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied by the (sic) court to convict the accused by treating it as eye-witnesses account." 39. A Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member in Rameshwar and Dinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No.158/2010 decided on 10/11/2014 , has observed, 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. 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." 40. Rampal also suffered a disclosure statement (Ex.P.54) that he can get iron wires and iron pipe recovered with which murder was committed. Exhibit-P.54 has also not been attested by any witness, thus for the reasons given above, no reliance can be placed on this piece of evidence. 41. As per FSL Report (Ex.P.56), piece of electric wire tested negative for the blood and on iron pipe though blood was found positive, but was not sufficient to test the blood group. However, the wire which was entangled with the dead body contained blood. This fact also go in the favour of accused to discard recovery of iron pipe and electric wire. 42. It is also required to be noted that Rampal also made a disclosure statement (Ex.P.10) and as stated earlier, vide recovery memo (Ex.P.11) got his motorcycle recovered from the house of his brother-in-law. Recovery of motorcycle will not advance the case of the prosecution as the motorcycle belonging to accused was not stained with any blood. 43. 42. It is also required to be noted that Rampal also made a disclosure statement (Ex.P.10) and as stated earlier, vide recovery memo (Ex.P.11) got his motorcycle recovered from the house of his brother-in-law. Recovery of motorcycle will not advance the case of the prosecution as the motorcycle belonging to accused was not stained with any blood. 43. Smt. Geeta suffered disclosure statement (Ex.P.55) and got recovered plastic bag containing one ration card, one pass-book, one cheque book, photocopies of documents pertaining to plot situated in Ghoda Basti and a site plan with pamphelets of the property situated at Malwa Nagar vide recovery memo (Ex.P.37). 44. We are amazed as for what purpose these documents will be retained by Geeta Devi as these documents in no way are valuable for her and cannot be used by her for her benefit. There was no reason for Geeta Devi to conceal these documents. It is to be noted that recovery memo (Ex.P.37) was prepared on 26.10.2005 after eleven days of the occurrence, it is improbable that these documents were retained by Geeta Devi and were not destroyed. As stated earlier, disclosure statement (Ex.P.55) is not attested by any person. Therefore, the reasoning given by us earlier to disbelieve the recovery relying upon the cases of Harjit Singh & Ors.(supra) and Rameshwar and Dinesh @ Pillu (supra) shall also prevail in favour of Geeta. 45. Ram Swaroop accused suffered two disclosure statements (Ex.P.52A and Ex.P.53). Exhibit-P.52A is regarding recovery of scooter for which disclosure has already been made by Rampal accused. Therefore, subsequent disclosure being inadmissible in evidence cannot be relied and recovery from Ram Swaroop cannot be taken into consideration. Likewise, Exhibit-P.53 is a disclosure made by Ram Swaroop qua purse and shoes of deceased. For these articles, Rampal had already made disclosure and re-disclosure is not admissible in evidence. 46. Having analyzed the case of the prosecution, having heard Shri S.K. Jain learned counsel for the appellants, Shri Vijyant Nirwan learned Amicus Curiae and Shri Aladeen Khan learned Public Prosecutor, we are of the opinion that mere recovery of articles is not sufficient to come to the conclusion that the offence has been committed by the accused alone. There are too many loopholes in the case of the prosecution so as to complete the chain of circumstances. 47. There are too many loopholes in the case of the prosecution so as to complete the chain of circumstances. 47. The circumstances, which have been brought against the appellants, cannot lead to a conclusion of guilt and even circumstances have not been fully established in the facts and circumstances of the present case. Our view has been fortified by judgment of Hon'ble the Supreme Court in Hanumant Govind Nargundkar v. State of M.P. : AIR 1952 SC 343 and further by another judgment recently passed by Hon'ble the Supreme Court in the case of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 , wherein Their Lordships have reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence and held, as under:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 48. As a result of above discussion, we accept both the appeals and set aside the conviction and sentence awarded upon the appellants by the trial court. They are acquitted of the charges framed against them.Appeals allowed. *******