JUDGMENT : Mr. Kanwaljit Singh Ahluwalia, J. 1. Dharmendra son of Shankar Singh, by caste Rajput, resident of Mahua, Mohalla Tikait, Police Station, Mahua, District Murena (M.P.), has preferred present appeal under Section 374 (2) Cr.P.C. in order to assail the impugned judgment dated 02.08.2010 rendered by the Court of Additional Sessions Judge, No.2, Sikar (Rajasthan), whereby the appellant was convicted for offences punishable under Sections 302 and 201 of Indian Penal Code. 2. Having convicted the appellant for the above said offences, the trial Court, vide a separate order of even date sentenced the appellant as under:- "For offence under Section 302 I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo one month additional rigorous imprisonment. For offence under Section 201 I.P.C. the appellant was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo one month additional rigorous imprisonment. (Both the sentences were ordered to run concurrently)" 3. Balaram Choudhary (PW-19) on 05.12.2008 was posted as Station House Officer, Police Station, Laxmangarh. He received telephonic information that an unidentified dead-body is lying at Laxmangarh Salasar Road. Upon receipt of said information, this witness, along with his companion officials, namely Chetram, Balveer, Devendra, Pyarelal and Jaipal in a Government Jeep reached at the spot. Upon reaching at spot, he carried inspection and found that the age of the unidentified dead person was 24-25 years. At the spot, on mobile, he requisitioned F.S.L. Team, M.O.B. Team & Dog Squad, Sikar. Investigating Officer carried inspection of the spot. He found that unidentified dead person was wearing vest and underwear. He was also wearing socks of black colour. Investigating Officer further found that there was an injury on the head of the deceased. Along with the dead-body, dry blood was lying. He also found dry stains of the blood up-to distance of about two kilometers towards Raj Hotel. On the western side also, he found dry blood trail up-to a distance of half kilometer. Investigating Officer registered a case for offences punishable under Sections 302 and 201 I.P.C. Thereafter, a formal First Information Report (Exhibit-42) was registered. The said First Information Report through Constable - Devendra Singh was sent to the Police Station for formal registration of the case. Investigating Officer registered a case for offences punishable under Sections 302 and 201 I.P.C. Thereafter, a formal First Information Report (Exhibit-42) was registered. The said First Information Report through Constable - Devendra Singh was sent to the Police Station for formal registration of the case. Investigating Officer received number of F.I.R. being 325/2008. Thereafter, he prepared site-plan of the spot vide Exhibit-P/3. Inquest/Panchnama was also prepared and same was attested by Manish (PW-2), Laduram (PW-3) and Jagdish (PW-4). Investigating Officer also took into possession blood stained soil and the stains for the purpose of sample vide memo Exhibit-P/4. The controlled soil was also taken into possession vide memo Exhibit-P/5. Investigating Officer also took into possession a lock of hair, which was lying on the chest of the deceased. Investigating Officer also gathered blood stains from the road in the presence of Jagdish (PW-4) and Rakesh. The clothes worn by the deceased i.e. underwear, vest and socks were taken into possession vide memo Exhibit-P/10. The dead-body was sent for the Post Mortem. Investigating Officer has proved in his testimony the Post Mortem Report as Exhibit-P/29. Investigating Officer also took into possession the report submitted by the State Forensic Science Laboratory Rajasthan, Jaipur vide Exhibit-P/48. 4. Nobody came forward to receive dead-body. Hence, dead body was cremated. However, Investigating Officer noted that on the right hand, Gograj name was engraved, along with an idol of Hanumanji. On 08.12.2008 the relatives of the deceased reading newspaper and seeing photograph of the deceased came and identified from photograph, the deceased as Gograj. 5. From the photographs of dead-body, same was identified as body of Gograj by Suresh (PW-5), Ramraj (PW-6), Medha (PW-8), Devkaran (PW-9) and Narayan (PW-10) respectively. 6. Investigating Officer, in the Court, deposed that the call details of the mobile phone of deceased - Gograj were verified and during investigation, it surfaced that deceased was working as Driver at Dezi Motors, Hissar. As per Investigating Officer, the present appellant – Dharmendra was also working as Driver in the same company. He was last seen with Gograj deceased at Chaudhary Hotel, Rajgarh by co-driver Chandrabhan and Owner of the Hotel/dhaba – Rajendra @ Raja (PW-12). Investigating Officer further stated that the truck driven by the deceased Gograj bearing registration No. HR 39-A-9720 was recovered vide memo Exhibit-P/20. The truck was lying parked at Kishangarh Ajmer Road. 7. He was last seen with Gograj deceased at Chaudhary Hotel, Rajgarh by co-driver Chandrabhan and Owner of the Hotel/dhaba – Rajendra @ Raja (PW-12). Investigating Officer further stated that the truck driven by the deceased Gograj bearing registration No. HR 39-A-9720 was recovered vide memo Exhibit-P/20. The truck was lying parked at Kishangarh Ajmer Road. 7. Investigating Officer further stated that vide memo Exhibit-P/21 blood stains were taken into possession from the truck. Investigating Officer further stated that during investigation, he took into possession call details of mobile phone bearing No.96364339189. Investigating Officer further stated that accused – Dharmendra had used phone of the deceased by inserting his own SIM. The accused on 22.12.2008 was arrested at Udaipur vide memo Exhibit-P/26. It is further case of the Investigating Officer that the accused got identified the place where the truck was parked, where he had committed murder of Gograj and the place where he had thrown the dead-body. The accused further got recovered one handle of engine and pant of deceased Gograj. The accused on 26.12.2008 also got recovered pant and shirt (Exhibit-P/46) worn by him from the Staff of Khaiten Enterprises, Kukas, Jaipur, in pursuance of the disclosure statement made by him. The accused also got recovered another mobile phone, which he had concealed at the premises of Khaitan Enterprises, Kukas (Exhibit-P/47), Jaipur. Lastly, Investigating Officer stated that during investigation, Rohitash son of Moturam had produced one mobile having I.M.I. number along with its battery and body. 8. Thus, it is evident that the conviction of the appellant rests upon following three circumstances:- "(A) That the appellant was last seen with the deceased by Chandrabhan, not examined and Rajendra @ Raja (PW- 12). (B) That the Investigating Officer took into possession the call details of the mobile phone of deceased and the accused to arrive at a conclusion that soon before the death, accused and deceased had exchanged the calls. (C) That the prosecution relied upon the recoveries at the instance of the accused. (D) That the appellant got identified the place where murder was committed and the place where he had parked the truck of the deceased and also the place where he had dumped the dead-body." A. Evidence of last seen. 9. (C) That the prosecution relied upon the recoveries at the instance of the accused. (D) That the appellant got identified the place where murder was committed and the place where he had parked the truck of the deceased and also the place where he had dumped the dead-body." A. Evidence of last seen. 9. So far as evidence of last seen is concerned, Chandrabhan, who knew both; the deceased - Gograj and the appellant Dharmendra, has not been examined by the prosecution. 10. So far as Rajendra @ Raja (PW-12) is concerned, in the Court even though he stated that Dharmendra accused came, along with Gograj deceased, before the Court, this witness further specifically stated that the person present in the Court is not that Dharmendra, who had accompanied Gograj deceased. 11. The ld. trial Court by giving cogent and valid reasons discarded the evidence of last seen. 11. The ld. trial Court by giving cogent and valid reasons discarded the evidence of last seen. The trial Court had given following reasons to discard the evidence of last seen:- ^^15- bl ekeys esa vfHk;kstu dh vksj ls tks lk{; vk;h gS] mlls ifjfLFkfrtU; lk{; ds vk/kkj ij vfHk;qDr dh nks"kflf) dk;e dh tk ldrh gS ;k ugha] bl ij U;k;ky; }kjk fopkj fd;k x;kA vfHk;kstu dh vksj ls viuh dgkuh esa vfHk;qDr o e`rd dks vafre ckj ns[kus ds ckjs esa ;g crk;k x;k fd ?kVuk ls igys vfHk;qDr jkf= dks 10&11 cts djhc e`rd ds lkFk Vªd esa us'kuy gkbZos ua0 65 ij jktx<+ ls pq: dh rjQ fLFkr pkS/kjh gksVy ij vk;k tgkaWa ij dEiuh dk vU; Vªd :dk gqvk FkkA ml Vªd ds M~kbZoj dh xkM+h dks /kDdk nsdj jokuk fd;k vkSj pkS/kjh dh gksVy ij vfHk;qDr o e`rd }kjk [kkuk [kk;kA vfHk;qDr o e`rd dks gksVy ds ekfyd jktsUnz mQZ jktk }kjk o pUnzHkku M~kbZoj }kjk vafre ckj lkFk esa ns[kuk crk;k x;k FkkA bl laca/k esa vfHk;kstu i{k dh vksj ls M~kbZoj pUnzHkku dks xokgku dh lwph esa xokg j[kus ds ckotwn ijhf{kr ugha djok;k x;k vkSj ih0MCY;q&12 jktsUnz mQZ jktk dh lk{; vfHk;kstu dh vksj ls djok;h x;h ftlus vius l'kiFk c;ku esa ;g dgk fd xksxjkt o /kesZUnz uke dk O;fDr mlds gksVy ij vk;s Fks vkSj pUnzHkku Hkh gksVy ij vk;k gqvk FkkA pUnzHkku ds Vªd dks /kDdk nsdj LVkVZ djok;k x;k Fkk vkSj muds tkus ds ckn /kesZUnz vkSj xksx jkt us mlds gksVy esa [kkuk [kk;k] ckn esa mls irk pyk fd xksx jkt dh gR;k dj yk'k lM+d ij Mky nh x;hA viuh lk{; esa vfHk;qDr dh f'kuk[r bl xokg }kjk ugha dh xbZ vkSj ;g dgk fd gkftj vnkyr eqyfte og ugha gS tks ml fnu xksxjkt ds lkFk Fkk] bl vk/kkj ij vfHk;kstu dh vksj ls bl dks i{knzksgh ?kksf"kr fd;k x;k vkSj ;g lq>ko fn;k x;k fd /kesZUnz flag dks cpkus ds fy, igpkuus ls bUdkj fd;k gS ftls xokg }kjk bUdkj fd;k x;kA bl izdkj tks nks egRoiw.kZ xokg bl ekeys essa e`rd o vfHk;qDr dks lkFk esa ns[kus ds Fks] muesa ls ,d xokg dks ijhf{kr ugha djok;k x;k vkSj tks nwljk xokg ijhf{kr djok;k x;k] mlds }kjk vfHk;qDr dks f'kuk[r ugha fd;k x;k] ,slh voLFkk esa bl ekeys esa vfHk;kstu dh vksj ls e`rd o vfHk;qDr dks vafre ckj lkFk esa ns[kus dh lk{; izLrqr ugha dh x;h gSA^^ B. Evidence of call details: 12. In the present case, Investigating Officer - Balaram Choudhary (PW-19), in the Court, has deposed that he had taken into possession mobile of accused and mobile of deceased, and one mobile was produced before him by one Rohitash. No bill of said mobile phones has been proved on record. Neither any shopkeeper has been examined to say that the particular mobile was purchased by the accused or the deceased. No witness or official of service provider has been examined to say that SIM used in the mobile recovered was in the name of deceased Dharmendra accused or belonged to their company. Even subscriber call details of the mobile phone recovered has not been proved on record. 13. On 22.12.2008 Investigating Officer – Balaram Choudhary (PW-19 had recovered one mobile of Haier Company. The said mobile was having SIM pertaining to Airtel Company vide another memo Exhibit-P/28. On 09.01.2009 Investigating Officer had taken another phone into possession of the brand of N.K.T.E.L. 14. For the first time, in the Court Constable -Pyare Lal (PW-13) had identified mobile phone, which was taken into possession from accused vide memo Exhibit-P/27. Similarly, phone of the deceased (Exhibit-P/28) was identified in the Court by Constable – Laxminarain (PW-15). The mobile phone were not mixed with similar phones nor identification proceeding was carried by any independent person regarding identification of mobile phone. 15. Be that as it may, Investigating Officer (PW-19) has not taken into possession subscriber call details from the service provider. Mere recovery of two phones is not sufficient to prove the exchange of call between accused and deceased, as incriminating circumstance against the appellant. 16. We also cannot infer that accused and deceased together were present at same location. 17. The Supreme Court in the case of Harpal Singh @ Chhota v. State of Punjab, reported as Criminal Appeal No.2539/2014, decided on November 21, 2016, qua the evidence of call details has held as under :- 11. 16. We also cannot infer that accused and deceased together were present at same location. 17. The Supreme Court in the case of Harpal Singh @ Chhota v. State of Punjab, reported as Criminal Appeal No.2539/2014, decided on November 21, 2016, qua the evidence of call details has held as under :- 11. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the adherence to the enjoinments of Sections 65B (2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B (2) had been complied with, in absence of a certificate under Section 65B (4), the same has to be held inadmissible in evidence. This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above." In view of the above observations of Supreme Court, evidence of call details cannot be relied against the appellant. Identification of spot by the accused: 18. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above." In view of the above observations of Supreme Court, evidence of call details cannot be relied against the appellant. Identification of spot by the accused: 18. So far as identification of the place at the instance of the appellant where alleged murder was committed or where truck was parked or dead-body was recovered is concerned, we find same is inadmissible in evidence. 19. It has come in the evidence of Balaram Choudhary (PW-19) that he received information, reached at the spot and found the dead-body. This witness further stated that he had received a telephonic call from Hemraj (PW-7) that the truck is lying parked in front of his shop, therefore, the place where the dead-body was lying and where the truck was parked was already in the knowledge of the Police. 20. Thus, there was no need for the disclosure by the accused. Nothing was lying concealed, therefore, it cannot be said that accused disclosed the place of which he had only knowledge. The fact which is already in knowledge of others requires no disclosure by the appellant. Hence, the circumstance that accused disclosed the place, where the truck was parked and where dead-body was thrown is immaterial and cannot be used as incriminating circumstance against the appellant, as these spots were already known to the Investigating Officer. 21. So far as place where alleged murder was committed is concerned, disclosure to this effect is not signed by any independent witness. 22. We may notice here that Exhibit-P/44 is the disclosure made by the accused regarding the place where the truck was parked. Exhibit-P/45 is the disclosure made by the accused that he can get recovered one handle of engine and one pant of Gograj from a deserted house. Exhibit-P/46 is the disclosure made by the accused that he has concealed his pant and shirt in the Staff Room of Khailtan Enterprises, Kukas, Jaipur. Exhibit-P/47 is the disclosure made by the accused that he concealed one mobile at the premises of Khaitan Enterprises, Kukas, Jaipur. None of the disclosure Exhibit-P/44 to Exhibit-P/47 have been attested by any independent witness. 23. Exhibit-P/47 is the disclosure made by the accused that he concealed one mobile at the premises of Khaitan Enterprises, Kukas, Jaipur. None of the disclosure Exhibit-P/44 to Exhibit-P/47 have been attested by any independent witness. 23. Relying upon the judgment of Hon'ble Apex Court in the case of Harjit Singh v. State of Punjab, A.I.R. 2002 Supreme Court 3040, a Division Bench of this Court to 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, 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. 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." Recoveries effected at the instance of accused: 24. For the reasons stated above, we are not inclined to accept the recoveries effected at the instance of accused, in pursuance of the disclosure made by him. Furthermore, so far as evidence of recovery is concerned, we reproduce here the result of the examination of the Forensic Science Laboratory Rajasthan, Jaipur, Exhibit-P/48 regarding the articles sent for examination :- "1. A 1. Blood smeared soil and stone Positive Human Inconclusive 2. B 2. Furthermore, so far as evidence of recovery is concerned, we reproduce here the result of the examination of the Forensic Science Laboratory Rajasthan, Jaipur, Exhibit-P/48 regarding the articles sent for examination :- "1. A 1. Blood smeared soil and stone Positive Human Inconclusive 2. B 2. Control soil & stone Negative - - 3. C 3. Hair Positive Not sufficient for test 4. D 4.Blood lifted from spot Positive Human Inconclusive 5. E 5. Blood Positive Human Inconclusive 6. F 6. Blood Positive Human Inconclusive 7. G 7. Cloth-Baniyan Positive Human Inconclusive "8. Chaddi Positive Human Inconclusive "9. Jurab Positive Human Inconclusive 8. H 10. Blood Positive Human Inconclusive 9. I 11. Pant Positive Human Inconclusive 10. J 12. Blood Positive Human Inconclusive 11. K 13. Iron handle with hair Positive Human Inconclusive 12. L 14. Pants Positive Human Inconclusive 13. M 15. Pants Positive Human Inconclusive "16. Shirt Positive Human Inconclusive 14. A 15. B As such forwarded to Toxicology division" 16. C 17. Vial 1 25. From perusal of above report, it is evident that on all the articles, human blood was found, but so far group of blood is concerned, same has not been determined, so we cannot say with certainty, whether on these items blood was of the deceased or of the accused or of some other person. Prosecution has failed to connect the recoveries with the accused. 26. We also find that witnesses to the recoveries memos of the articles recovered were close relatives of the deceased. 27. Ramraj (PW-6), who is witness to recovery from the accused, in the Court has admitted that Gograj deceased is son of his uncle (tau). Another witness to the recoveries from the accused, Bhagchand (PW-11) in the Court has admitted that he had signed recovery memo at Police Station. 28. We reproduce here following portion from the cross-examination of Bhagchand (PW-11) as under:- 29. Considering that Ramraj (PW-6), an attesting witness of recovery is relative of the deceased and the admission made by Bhagchand (PW-11), in cross-examination, that he had signed papers at the Police Station, we are of the view that the recovery affected by the prosecution, inspires no confidence. 30. Considering that Ramraj (PW-6), an attesting witness of recovery is relative of the deceased and the admission made by Bhagchand (PW-11), in cross-examination, that he had signed papers at the Police Station, we are of the view that the recovery affected by the prosecution, inspires no confidence. 30. Thus, taking totality of circumstances, we are of the view that the prosecution has miserably failed to prove the chain of circumstance to arrive at a conclusion that offence, if any, has only been committed by the appellant and by none nobody else. 31. A Division Bench of this Court in Vijay Choudhary v. State of Rajasthan, in D.B. Criminal Appeal No.870/2011, decided on May 19, 2015 of which one of us (Kanwaljit Singh Ahluwalia J.) was a Member had observed as under :- "20. It is a case of circumstantial evidence but the prosecution has utterly failed to complete the chain of circumstance and reliance in this connection can be placed upon the judgment of the Hon'ble Supreme Court in Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 ] and another judgment of the Supreme Court recently passed in the case of Vasanta Sampat Dupare v. State of Maharashtra [ (2015) 1 SCC 253 ], wherein Hon'ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence, as under:- "It is well to remember those 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." Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle, which are conspicuously missing. The evidence is neither cogent nor convincing for upholding the conviction of the appellant for the alleged crime. 22. The crime of circumstances against the accused-appellant has got several missing links. Neither individual circumstances are established against the accused-appellant beyond any reasonable doubt nor do they form a chain of circumstance so complete, as to rule out every reasonable hypothesis that may be compatible with his innocence. The circumstances do not conclusively prove that it was only the accused-appellant, who could have committed the murder of deceased and none-else. The individual act independently or collectively, which has been brought on record against the appellant, is not sufficient to connect him with the alleged crime and hence, it would not be safe to record his conviction." 32. As a result of above discussions, we extend the benefit of doubt to the present appellant as a matter of abundant caution. 33. Consequently, we accept the present appeal, set aside impugned judgment and sentence awarded by the trial Court upon the appellant and acquit him of the charges. 34. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant – Dharmendra is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- [Rupees Twenty Thousand Only] 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 Hon'ble Apex Court.