JUDGMENT : Kanwaljit Singh Ahluwalia, J. Ramballabh (P.W.18) on 25.5.2008 being posted as SHO, Police Station Bhanwargarh at 9.45 AM received a telephonic information that dead body of Shivraj is lying in Village Hathiyadeh. After noting the information in daily diary report, Ramballabh (P.W.18) along with his companion police officials proceeded to the spot where the dead body was lying. 2. Upon arrival of police at the spot, Roshanlal (P.W.1) presented a written report (Ex.P.1). 3. Roshanlal (P.W.1) also identified the dead body to be of Shivraj, his brother. 4. In written report (Ex.P.1) Roshanlal in nutshell stated that on 24.5.2008 his brother Shivraj on his motorcycle had accompanied Munna Lal s/o Ratanlal. 5. Munna Lal happens to be cousin of Shivraj being his Taya's son. It was further stated in the written report (Ex.P.1) that on the next day on 25.5.2008 in the morning dead body of Shivraj was found in the village on Chabutara made in the memory of father of informant. In the written report (Ex.P.1) it was further stated that one mobile Nokia 1600 having telephone connection No.9928187432 belonging to the deceased was missing and Munna Lal is also absconding. 6. The above said written report (Ex.P.1) was investigated. Investigating agency submitted a charge-sheet under Section 173 Cr.P.C. Charge-sheet was committed to the Court of Sessions and was entrusted for trial to the Court of Additional Sessions Judge (Fast Track), Baran. The said court charged the appellant for offence under Section 302 IPC. The charge stated that on 24.5.2008 at 11.00 AM or thereafter at any time in the revenue estate of Hathiyadeh appellant had murdered Shivraj by causing him injuries with stone and thus, committed offence punishable under Section 302 IPC. The appellant pleaded not guilty and claimed trial. 7. Prosecution in order to secure conviction of the appellant, has examined twenty-three witnesses and proved on record documents, Exhibits-P.1 to P.27A. 8. Two reports received from the State Forensic Science Laboratory have been assigned Exhibits-C1 and C2. 9. After conclusion of the trial, the Court of Additional Sessions Judge (Fast Track) Baran held the appellant guilty of offence under Section 302 IPC and vide a separate order of even date, sentenced him to life imprisonment, to pay a fine of Rs.5000/- and in default thereof to undergo six months simple imprisonment. 10. 9. After conclusion of the trial, the Court of Additional Sessions Judge (Fast Track) Baran held the appellant guilty of offence under Section 302 IPC and vide a separate order of even date, sentenced him to life imprisonment, to pay a fine of Rs.5000/- and in default thereof to undergo six months simple imprisonment. 10. Aggrieved against his conviction and sentence, the appellant had filed D.B. Criminal Appeal No.211/2010. He had also sent an appeal through Jail which was assigned D.B. Criminal (Jail) Appeal No.235/2010. A Division Bench of this court has admitted D.B. Criminal Appeal No.211/2010 and tagged the same with D.B. Criminal Jail Appeal No.235/2010. 11. Hence, both the appeals are placed before us for hearing after receipt of record and preparation of the paper-book. We order clubbing of both the appeals. 12. We have gone through the evidence with able assistance rendered by Shri Sanjay Gangwar learned counsel for the appellant and Mrs. Sonia Shandilya learned Public Prosecutor. 13. Prosecution to secure conviction of the appellant has relied upon the following circumstances:- (a) Evidence of the last seen - To prove this incriminating circumstance, the prosecution has examined Roshanlal (P.W.1) brother, Poonia Bai (P.W.8) mother, Raju (P.W.7) who has turned hostile, Mohd. Sharif (P.W.9) and Ram Narain (P.W.13) who has also turned hostile to the prosecution. (b) Recovery of mobile from the appellant, - Case of the prosecution is that the appellant suffered disclosure statement (Ex.P.26) on 26.5.2008 at 11.00 AM and in pursuance thereof got recovered mobile phone, pant and shirt worn by him vide memo Ex.P.13. It is to be noted that the disclosure statement (Ex.P.26) is not attested by any witness whereas the recovery memo (Ex.P.13) regarding recovery of mobile and clothes worn by the accused is attested by Babulal (P.W.11) and Hansraj (P.W.12). (c) Recovery of clothes stained with blood - Case of prosecution further is that the shirt worn by the deceased was also taken into possession vide recovery memo (Ex.P.7). The said memo (Ex.P.7) is attested by Man Singh (P.W.4) and Narain (P.W.5). (c) Recovery of clothes stained with blood - Case of prosecution further is that the shirt worn by the deceased was also taken into possession vide recovery memo (Ex.P.7). The said memo (Ex.P.7) is attested by Man Singh (P.W.4) and Narain (P.W.5). Blood stains on the shirt worn by the deceased and the shirt and pant recovered from the accused tally as it is opined by the State Forensic Science Laboratory in its report (Ex.C2) that the shirt worn by the deceased and the shirt and pant recovered from the accused which he was wearing at the time of occurrence were having stains of human blood group 'B'. (d) Conduct of the accused-appellant - Case of the prosecution is that the accused had left with the deceased on 24.5.2008 and till recovery of the dead body on 25.5.2008 at 12.05 P.M. accused was not found and hence, it is to be assumed that he had absconded and this fact depict guilty mind. We may notice here that the accused appellant Munna Lal was arrested on 26.5.2008 vide Exhibit P.24 on the very next day of recovery of the dead body. 14. Before we deal with the incriminating circumstances, we shall have a quick glance of the witnesses examined by the prosecution. 15. Dhan Singh (P.W.2) and Ganpat (P.W.3) had attested the inquest (Ex.P.2). 16. Man Singh (P.W.4) and Narain (P.W.5) not only attested the inquest, but have also witnessed the recovery from the spot i.e. recovery of stone near the dead body which was also having stains of human blood of 'B' group. They have also attested memo (Ex.P.3) whereby spot was photographed. They have also attested the recovery of memo whereby blood stained earth and controlled soil were lifted from the spot. They had also attested memo whereby shirt worn by the deceased was handed over to the police. 17. Laxman Lal (P.W.6) has stated that the dead body of the deceased Shivraj was found in their field near the Chabutara of his grand father. He had identified the dead body and saw that the same was having injuries caused with a stone. 18. Dr. Shyam Sundar (P.W.14) had conducted autopsy on the dead body. As per opinion of the Doctor, cause of death was coma as a result of injury to frontal lobe followed by haematoma. 19. Mohd. Arif (P.W.15) is a photographer. He had identified the dead body and saw that the same was having injuries caused with a stone. 18. Dr. Shyam Sundar (P.W.14) had conducted autopsy on the dead body. As per opinion of the Doctor, cause of death was coma as a result of injury to frontal lobe followed by haematoma. 19. Mohd. Arif (P.W.15) is a photographer. He had taken photographs of the spot. 20. Mahavir (P.W.16) has proved sale of mobile to deceased. 21. Meghraj (P.W.17) is a Constable posted at Police Station Bhanwargarh. He had carried articles to the Forensic Science Laboratory. 22. Girraj (P.W.23) was posted as Head Constable at the police station Bhanwargarh. 23. Hence, Constable Meghraj (P.W.17) and Head Constable Girraj (P.W.23) have been examined to prove the link evidence. 24. Gopal (P.W.19) and Gopal Singh (P.W.22) had witnessed the memo whereby bill of purchase of mobile was taken into possession by the police. 25. Gulab Chand (P.W.20) is Constable in whose presence shoes of the deceased were taken into possession. The said shoes were stained with blood. However, as per report of the State Forensic Science Laboratory human blood found on the shoes was inconclusive and therefore, the group could not be determined. 26. Shankar Singh (P.W.21) had witnessed the arrest memo. 27. As stated earlier, Ram Ballabh (P.W.18) being investigating officer has proved on record various facets of the investigation. 28. Now, we shall advert to the incriminating circumstances relied by the prosecution. (a) Evidence of last seen: - Complainant Roshanlal (P.W.1) is star witness of the prosecution examined to prove the evidence of last seen. He deposed in court that on 24.5.2008 at about 9.30 A.M. Shivraj on his motorcycle had accompanied Munna Lal. Munna Lal was on pillion seat. On the next day he learnt that dead body of his brother was lying in their field. From the face, the dead body was not identifiable, but he identified the dead body from the clothes worn by the deceased. It is to be noted that in written report (Ex.P.1) this witness had stated that the accused and the deceased had left at 11.00 A.M. 29. However, in court the witness had preponed the time to 9.30 A.M. This may be inconsequential discrepancy. In cross-examination the witness stated that on which date the deceased and the accused had left he is not aware. However, in court the witness had preponed the time to 9.30 A.M. This may be inconsequential discrepancy. In cross-examination the witness stated that on which date the deceased and the accused had left he is not aware. The witness stated as under:- ^^;g yksx dc x;s Fks bldh rkjh[k eq>s ;kn ugha gS ij og fnu 'kfuokj FkkA** 30. The witness further submitted that he is having inimical relations with the present appellant. In cross-examination the witness deposed, ^^;g lgh gS fd esjh vkSj eqUuk dh igys ls jaft'k FkhA** 31. Poonia Bai (P.W.8) mother of the deceased in court stated that the accused with deceased had left on motorcycle at 12.00 O'clock. On the next date when she inquired from Munna Lal about the deceased, he told that he is not aware about his whereabouts. 32. She further stated that Munna Lal and Shivraj had cordial relations and they both used to take drink together. The witness in court stated as under:- ^^eqUuk us dgk fd esjs cq[kkj p<+ jgk gS esjs lqbZ fnyok yk fo'okl ls mldks ys x;kA eqUuk o f'kojkt izse ls jgrs Fks nksuksa nk: Hkh ihrs FksA ml fnu Hkh bu nksuksa us nk: ih Fkh tks ckykth ij ih FkhA** 33. Raju (P.W.7) is a resident of Karwaripur. 34. Village of deceased, accused, Roshanlal (P.W.1) and Poonia Bai (P.W.8) is Hathiyadeh. Raju has turned hostile to the prosecution and has stated that he is not aware whether on 24.5.2008 Shivraj and Munna Lal came to purchase liquor. 35. Mohd. Sharif (P.W.9) stated that he is having grocery shop at Karwarikala. He knew Munna Lal and Shivraj. They came to his shop between 12.00-1.00 P.M. This witness stated that village of Shivraj and Munna Lal is at a distance of 3-4 km from his village. 36. Ram Narain (P.W.13) has stated that on the said date, Shivraj alone had come to purchase liquor and he was not accompanied by Munna Lal. 37. From the above evidence, following facts emerge for consideration:- (a) Deceased Shivraj left his village Hathiyadeh along with the appellant on 24.5.2008 between 9.30 to 12.00 PM. They had reached at Village Karwaripura and had purchased liquor there. (b) Dead body of deceased was found in the native Village Hathiyadeh on the next morning on 25.5.2008 in the morning. 37. From the above evidence, following facts emerge for consideration:- (a) Deceased Shivraj left his village Hathiyadeh along with the appellant on 24.5.2008 between 9.30 to 12.00 PM. They had reached at Village Karwaripura and had purchased liquor there. (b) Dead body of deceased was found in the native Village Hathiyadeh on the next morning on 25.5.2008 in the morning. Prosecution has led no evidence that after the accused and deceased were last seen on 24.5.2008 at Village Karwaripura in the afternoon, they were later seen together going towards village Hathiyadeh or they had not departed from each other. (c) Poonia Bai (P.W.8) mother of the deceased stated that on the next day when she confronted Munna Lal as to where Shivraj is, he disclosed that he is not aware about his whereabouts. 38. We find that the prosecution has miserably failed to prove unity of time space and action to arrive at the conclusion that immediately before murder, deceased and accused were seen together. We cannot ignore that deceased and accused are cousins. 39. Poonia Bai (P.W.8) has admitted ^^eqUuk yky esjs tsB dk yM+dk gSA** 40. We have already noticed that Roshanlal (P.W.1) has admitted that he was having grudge with the accused-appellant before the occurrence. Thus, we cannot rule out that name of the appellant has been introduced by Roshanlal (P.W.1) on the next morning and his mother Poonia Bai (P.W.8) also connived with him because of inimical relations of Roshanlal (P.W.1) with the present appellant. (b) Evidence of recovery of mobile: 41. Case of the prosecution is that the appellant has suffered a disclosure statement (Ex.P.26) and led the police party to his house from where mobile of the deceased and clothes worn by the accused were recovered. Disclosure statement (Ex.P.26) is not attested by any independent witness. 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. 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.” 42. Furthermore, we find that Hansraj (PW.12) in cross-examination stated that he was called by the police and police had directed him to sign the papers. The witness stated as to what was written on the papers he was not aware, ^^dkxtksa ij D;k fy[kk Fkk eq>s ;kn ugha gSA** 43. Babulal (P.W.11) in court has only stated that he has signed Exhibit-P.13 regarding recovery of mobile phone, but he has not given any detail from where the articles were recovered. 44. Considering the admission made by Hansraj (P.W.12) that he was made to sign the papers by the police and Babulal (P.W.11) has furnished no details in his deposition in court regarding the place of recovery, we are of the view that it is not safe to rely upon the incriminating evidence of recovery of mobile. 45. Hence, we rule out recovery of mobile purportedly at the instance of the accused out of consideration. (c) Recovery of clothes stained with blood: 46. Ms. 45. Hence, we rule out recovery of mobile purportedly at the instance of the accused out of consideration. (c) Recovery of clothes stained with blood: 46. Ms. Sonia Shandilya learned Public Prosecutor has laid much emphasis on the fact that a stone recovered near the dead body. It is urged that stone, shirt of deceased recovered by the police and pant and shirt worn by the deceased as per report of the State Forensic Science Laboratory (Ex.C2) bear human blood and group of blood is 'B'. Thus, it is contended that the prosecution has succeeded to prove that the blood group on the clothes of deceased and on the clothes of accused tally, therefore we should infer that the appellant had caused injuries. 47. We find that the prosecution has made no attempt to prove on record blood group of the accused. 48. Supreme Court in Shankarlal Gyarasilal Dixit v. State of Mahaashtra [1981 Criminal Law Journal Page 325] has held 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.” 49. Fathers of appellant Munna Lal and deceased Shivraj are real brothers. Thus, it was incumbent for the prosecution to also prove on record the blood group of the accused-appellant. We cannot rule out that the clothes of the accused may be having his own blood. (d) Conduct of the accused: 50. Much emphasis has been laid before us that the accused had absconded and therefore, we should construe his conduct to be that of guilty mind. The dead body was found on 25.5.2008 in the morning. Appellant has been arrested on the very next date i.e. 26.5.2008. (d) Conduct of the accused: 50. Much emphasis has been laid before us that the accused had absconded and therefore, we should construe his conduct to be that of guilty mind. The dead body was found on 25.5.2008 in the morning. Appellant has been arrested on the very next date i.e. 26.5.2008. It has already come in the evidence of Poonia Bai (P.W.8) that on the day of recovery of dead body itself she had confronted the appellant regarding the whereabouts of the deceased. That proves that on the day when the dead body was found, appellant was in his village. Thus, merely because the appellant was arrested a day later, we cannot assume that he was absconding and his conduct is of a guilty mind. 51. Having analysed and dissected the prosecution case, we are of the view that the prosecution has miserably failed to prove chain of circumstances to arrive at a conclusion that the appellant alone had committed the offence and nobody else could commit the crime. Thus, we record acquittal of the accused appellant in the present case. 52. Resultantly, both the appeals, namely D.B. Criminal Appeal No.211/2010 filed by the appellant through counsel and D.B. Criminal (Jail) Appeal No.235/2010 preferred by the appellant through Jail, are accepted. Conviction and sentence of the appellant for offence under Section 302 IPC is set aside and he is acquitted of the charges framed against him by the trial court. 53. Keeping, however, in view the provisions of Section 437-A Cr. P.C, the accused-appellant, namely Munna Lal is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, 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 appellant, on receipt of notice thereof, shall appear before the Apex Court.