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2016 DIGILAW 673 (RAJ)

Vinod Kumar v. State of Rajasthan

2016-05-12

KANWALJIT SINGH AHLUWALIA, PRAKASH GUPTA

body2016
JUDGMENT : 1. By this criminal appeal filed under Section 374 Cr.P.C. the appellant seeks to challenge the judgment of conviction and order of sentence dated 05.02.2009 passed by the learned Additional Sessions Judge (Fast Track) No. 6, Jaipur City in Sessions Case No. 04/2008 whereby the appellant has been convicted and sentenced as under:-- "1. Under Sections 302/34 IPC: to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine to further suffer additional simple imprisonment for year. 2. Under Section 397/34 IPC: to undergo ten years' rigorous imprisonment and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo additional simple imprisonment six months; 3. Under Sections 394 IPC:-- to undergo ten years' rigorous imprisonment and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo additional simple imprisonment six months;" 2. All the substantive sentences have been ordered to be run concurrently. 3. The facts of the case as summarised are that on 21.5.2007, complainant Om Prakash (P.W. 27) submitted a written report (Ex. P.41) at the Police Station Vishvakarma, Jaipur City (North). The said written report when translated into English reads as under:-- To, The Incharge, Police Station Vishvakarma, Jaipur. Subject: For registration of report regarding murder. Sir, It is submitted that I am the resident of village Nayabas, District Jaipur. Today in the morning about 10.30 AM Sagar Jangid, family nephew informed that somebody murdered Banshidhar uncle and Mahendra in the factory of Om Industries. I came to the factory and saw that in the office of Om Industries situated on plot No. A-129 Road No. 9 of Vishvakarma, dead bodies of my elder brother Banshidhar and Mahendra, son of my maternal uncle were lying which were stained with blood. There were injuries on both the bodies. At about 7.00-7.30 in the morning of yesterday i.e. 20.5.07, Banshidhar, my brother came to the factory with cash amount of Rs. 1,50,000/- (Rupees one lac fifty thousand) for the work of the factory. All the notes were of 500 denomination. My brother used to keep the amount in the rack of the office table which was found open and the papers of the office were also lying on the table. 1,50,000/- (Rupees one lac fifty thousand) for the work of the factory. All the notes were of 500 denomination. My brother used to keep the amount in the rack of the office table which was found open and the papers of the office were also lying on the table. Rupees one lac and fifty thousand were not found in the drawer of the table and also the four silver coins with the writing of Om Industries were also not there. Some unknown persons murdered my elder brother Banshidhar and maternal uncle's son Mahendra and took away rupees one lac and fifty thousand cash and silver coins. The workers working in the factory namely, Sanjeev Sharma, Vinod and Raju Thakur are missing. Report is being submitted for necessary action. Applicant Om Prakash S/o. Chittarmal B/c Jangid, Village Nayabas Tehsil Shahpura, Distt. Jaipur." 4. On the basis of this written report (Ex. P.41) a formal FIR No. 140/2007 (Ex. P.42), was chalked out for offence under Sections 302 and 394 IPC on 21.5.2007 at Police Station Vishvakarma, Jaipur and investigation commenced. During the course of investigation site plan (Ex. P.29) of the place of occurrence was drawn. Statements of the witnesses were recorded. Post mortem on the dead bodies of Banshidhar and Mahendra was got conducted. Accused Pappu @ Sanjiv Sharma and appellant Vinod Kumar were arrested. 5. After completion of the investigation, charge sheet was filed against accused-appellant and also against co-accused Pappu @ Sanjiv Sharma in the court of Judicial Magistrate of competent jurisdiction who in turn committed the case to the Court of Sessions. Investigation under Section 173(8) Cr.P.C. was kept pending against accused Raju Thakur. Upon committal, learned trial court framed charges against the appellant and co-accused Pappu @ Sanjiv Sharma for offences under Sections 397 or 397/34, 394 or 394/34 and 302 or 302/34 IPC to which the accused denied, pleaded not guilty and claimed trial. 6. In order to support its case, the prosecution examined thirty witnesses, and got exhibited documents (Ex. P.1 to Ex. P.75). Statement of the appellant was recorded under Section 313 Cr.P.C. wherein he denied the allegations and explained recovery of cash amount saying that he brought the amount from his brother. However, no evidence was led in defence. 7. 6. In order to support its case, the prosecution examined thirty witnesses, and got exhibited documents (Ex. P.1 to Ex. P.75). Statement of the appellant was recorded under Section 313 Cr.P.C. wherein he denied the allegations and explained recovery of cash amount saying that he brought the amount from his brother. However, no evidence was led in defence. 7. After going through the documentary and oral evidence, vide the judgment impugned dated 5.2.2009, the learned trial court convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 8. Before adverting to the arguments raised by the learned counsel for the parties, it would be appropriate to go through the evidence of the important and relevant prosecution witnesses. 9. Ramavtar (P.W. 4) is the person who was working in the factory of deceased Banshidhar and upon receiving information regarding murder of deceased Banshidhar he came to the factory. In examination in chief the witness has deposed that he was working in the furniture factory of deceased Banshidhar. On 18.5.2007, after taking leave for 3-4 days, he left for his village Navalpura. On 21.5.2007 he came to know about murder of Banshidhar then he reached at the factory and found police and persons collected there. Bodies of Banshidhar and his cousin Mahendra were lying in the office of the factory. He stated that Badri, Raju, Vinod, Vijay and Sanjeev were also working in the factory. Sanjeev and Vinod are residents of Uttar Pradesh and Raju Thakur is resident of Hanumangarh. All of them were working with him in the furniture factory. Both the accused Pappu @ Sanjeev and Vinod were the co-worker at the same factory. 10. Another witness Rajendra Kumar (P.W. 13) is the brother of deceased Banshidhar and deceased Mahendra was his cousin. In his statement this witness has deposed that his younger brother Banshidhar was looking after the business of Om Industries and used to come to the factory after the interval of two-three days. Vinod, Pappu, Raju and Banshidhar were working in the factory. Three-four days earlier to his death, Banshidhar agreed to sell his factory for a consideration of Rs. 15,00,000/- and brought the amount to their house situated in the village. Out of the amount of sale consideration Banshidhar brought Rs. 1,50,000/- in the factory. On 20.5.2007 Mahendra came to meet Banshidhar. Vinod, Pappu, Raju and Banshidhar were working in the factory. Three-four days earlier to his death, Banshidhar agreed to sell his factory for a consideration of Rs. 15,00,000/- and brought the amount to their house situated in the village. Out of the amount of sale consideration Banshidhar brought Rs. 1,50,000/- in the factory. On 20.5.2007 Mahendra came to meet Banshidhar. Possession of the factory was with them and they were continuing with the work. There were 4-5 silver coins in the drawer of the office table. On the silver coins, there was impression of Om Industries on one side and the photos of Ganesh ji and Laxmiji on the another side. On the intervening night of 20-21.5.2007 Banshidhar and Mahendra were murdered and Vinod, Raju and Pappu had absconded. Pappu was also known as Sanjeev. According to this witness, after murder the silver coins, cash amount kept in the office and mobile phone of Banshidhar were missing and accused Vinod, Pappu and Raju after committing murder absconded with the cash/articles. 11. Gauri Shanker (P.W. 14) is also the brother of deceased Banshidhar. In his statement he deposed that Om Industries belonged to them which was being looked after by Banshidhar and oftenly he also used to go there. 5-7 workers were working in the factory. Pappu, Vinod Raju Thakur, Vijay and Rajesh were amongst them, who performed wood work. On the intervening night of 20/21 Banshidhar and Mahendra were murdered. 4-5 days earlier to the incident, Banshidhar sold the factory to Rambabu Jangid for Rs. 15,00,000/- and Rambabu paid the amount of sale consideration which amount Banshidhar brought to the house. On 20th Banshidhar along with Mahendra came to the factory with cash amount of Rs. 1,50,000/-. After the murder neither the cash amount nor the silver coins were found there. According to this witness after committing murder, Vinod, Pappu and Raju Thakur took away these things. 12. Om Prakash (P.W. 27) is another brother of deceased Banshidhar. Reiterating the facts narrated by his two brothers i.e. Rajendra Kumar (P.W. 13) and Gauri Shanker (P.W. 14) he deposed that upon receiving information regarding the incident, he came to the factory where some persons along with police personnel were present. Police got opened the door of the factory after breaking the lock, Banshidhar and Mahendra were found dead and office papers were spread here and there. Police got opened the door of the factory after breaking the lock, Banshidhar and Mahendra were found dead and office papers were spread here and there. Shelf of the table was lying on the table and the lock of the shelf was damaged. The cash amount and the silver coins which were kept in the shelf were not found. Pappu, Vinod, Raju, Vijay and Badri were working in the factory. He knew accused Pappu and Vinod who were working in the factory and were present in the court. 13. Sagar Jangid (P.W. 19) is the person who upon receiving information regarding the incident reached at the factory where he found that number of persons along with the police personnel were present there. Om Prakash (P.W. 27), brother of Banshidhar was informed on telephone. Thereafter the police entered into the premises of the factory by breaking the lock of small gate and when they entered into the office after breaking lock they found Banshidhar and Mahendra lying there. There were blood stains on the body and on the head of both the persons. Goods of the office were lying here and there. It looked that some body after committing murder of the deceased had put the lock from out side. 14. Vijay Kumar (P.W. 17) in his examination in chief has deposed that at the time of incident he was working in the Om Industries and was doing furniture manufacturing work. Banshidhar Jangid was the owner of the factory. In addition to him, Ramawatar, Badri Prasad, Raju, Pappu, Vinod etc. were working in the factory. Pappu was also known as Sanjeev and Raju was called as Thakur. Sanjeev and Vinod were residents of village Gasingpura, Farrukhabad and Raju Thakur was resident of Tisrasar, Hanumangarh. Ramawatar and Badri had gone on leave from 18th May, 2007. On 20.5.2007 Banshidhar came to factory usually at 10.00 AM. At that time his cousin Mahendra was also with him. On 20.5.2007, in addition to him, Pappu, Vinod and Raju attended the work. Gajanand Jangid and two other persons were with Banshidhar who took tea together and after having tea, Gajanand along with his two companions went from there and Banshidhar and Mahendra stayed in the factory for whole of the day. In the evening at about 8.00-8.30 PM Banshidhar and Mahendra went to hospital to see someone and returned from there after a short time. In the evening at about 8.00-8.30 PM Banshidhar and Mahendra went to hospital to see someone and returned from there after a short time. This witness further deposed that on the day of the occurrence his brother Rajesh came to him to take money. He took Rs. 1000/- from Banshidhar and gave Rs. 600/- to Rajesh but it was too late therefore Rajesh stayed at the factory. About 10.00 in the night Raju Thakur and Pappu went out of the factory saying that they were going to meet someone and did not return. After waiting for them for some time, Mahendra had put lock from inside on the small and big gates of the factory. About 10.30-10.45 PM, he, his brother Rajesh and Vinod went to sleep on the roof of the factory and Banshidhar and Mahendra went inside the office to sleep. Doors of the office were open. The deposition of this witness is further to the effect that in the morning at about 6.00-6.30 AM, he along with his brother Rajesh woke up and found that Vinod was not on the bed. He came down stairs and found that lock was put on the doors of the office. Locks were there from inside on the main gates and Raju and Sanjeev were not in the factory. Shoes of Banshidhar and Mahendra were lying outside the office but a lock was there. When he apprehended something wrong, he tried to see inside the office through glass pane and found Banshidhar and Mahendra were sleeping. When he knocked at the doors of the office, no response was there. Thereafter he went on the roof of the factory and went to Shri Rambabu, owner of the nearby factory Shiv Shakti Mechanicals and narrated all the facts then he called the police and the police got the doors opened. In the meantime, Omji, brother of Banshidhar and other persons came there. When the doors of the office were opened, Banshidhar and Mahendra were found dead and blood in huge quantity was lying spread there. Raju, Vinod and Sanjeev were missing from the factory since night. He further deposed that in the night Sanjeev and Raju entered the factory premises by jumping the wall and after committing murder of Banshidhar and Mahendra with the help of Vinod ran away from there. Raju, Vinod and Sanjeev were missing from the factory since night. He further deposed that in the night Sanjeev and Raju entered the factory premises by jumping the wall and after committing murder of Banshidhar and Mahendra with the help of Vinod ran away from there. The clothes which Raju and Sanjeev were wearing at the time of going out of the factory were found hanging in the room near to the office. Blood stains were on the pants of Raju. The witness identified Pappu and Vinod, present in the court as accused. 15. Rajesh (P.W. 15) is the brother of Vijay (P.W. 17). He deposed that Vijay is his elder brother, who was working in the Om Industries. Due to need of money, on 20.5.2007 he came to Vijay to take the same. At that time in addition to his brother Vijay, Sanjeev, Viond and Raju were working in the factory. On that day, he stayed there. Factory owner Banshidhar and his cousin Mahendra were also there. Thereafter this witness reiterated the same facts as narrated by Vijay (P.W. 17). 16. Rambabu Jangid (P.W. 18) is the owner of nearby factory Shiv Shakti Mechanicals. This witness deposed that the owner of the adjoining factory Om Industries was Banshidhar. He purchased Om Industries 4-5 days earlier to the incident and made payment of Rs. 15,00,000/- to Banshidhar. In the morning of 21.5.2007 at about 9.30 he reached at the factory then Vijay Kumar, worker of Banshidhar's factory told that Banshidhar and Mahendra had slept in the office but they had not woken. Then he made a phone call to the police. The police arrived at the place of incident and entered the factory premises by breaking the lock of main gate and called Banshidhar and Mahendra and finding no response, the lock put outside the door was broken and then it was found that Banshidhar and Mahendra were lying dead. Both were bleeding from the mouth and there were injuries on their head. Pappu, Raju Thakur and Vinod, workers of Om Industries were found absconding. The relatives of Banshidhar had disclosed that the cash amount and goods kept in the office were missing. 17. Rudmal Singh (P.W. 25), at the relevant time, was posted as ASI at the Police Station Vishvakarma, Jaipur. Pappu, Raju Thakur and Vinod, workers of Om Industries were found absconding. The relatives of Banshidhar had disclosed that the cash amount and goods kept in the office were missing. 17. Rudmal Singh (P.W. 25), at the relevant time, was posted as ASI at the Police Station Vishvakarma, Jaipur. He stated that on 4.6.2007 he along with constable Om Prakash was sent to Uttar Pradesh in search of accused of case No. 140/07. On 5.6.2007 he along with SI Bhanwar Lal, H.C. Jadgdish, Constable Ramswaroop met Mahaveer of the Police Station Vishvakarma, who had already gone in search of the accused. When they were returning from village Karmanpurva then they found accused Pappu @ Sanjiv on the band of Umrada Canal, who was waiting for the bus and was arrested by the SHO, Police Station Indergarh. During search of Sanjeev, cash amount of Rs. 9,000/- and one Nokia phone were recovered from his person. Accused told that he committed murder of Banshidhar and his relative at Jaipur had stolen the cash amount and phone from there and got the SIM changed. Cash amount and Mobile Phone were sealed and the accused was arrested in accordance with the provisions of law. The Fard prepared is Ex. P.43 which contains his signatures and signatures of accused along with the signatures of Dev Raj, SHO, Police Station Indergarh. Other police personnel along with the accused and the recovered articles, returned to Jaipur and he stayed there in search of rest of the amount and accused. On 9.6.2007 he reached at Nandgaon, District Hardoi, Uttar Pradesh. While entering the village accused Vinod met them he tried to escape seeing the police party but he was intercepted with the help of other police personnel. Upon search cash amount of Rs. 3500/- and two silver coins were recovered from his person and he was arrested vide arrest memo Ex. P.1. Necessary fard regarding recovery of cash amount and two silver coins (Ex. P.2) was prepared. Arrested accused Vinod was brought to Police Station Vishvakarma, Jaipur. Accused Vinod disclosed that the goods recovered from him were stolen by him and his companions from the factory after committing murder of factory owner. P.1. Necessary fard regarding recovery of cash amount and two silver coins (Ex. P.2) was prepared. Arrested accused Vinod was brought to Police Station Vishvakarma, Jaipur. Accused Vinod disclosed that the goods recovered from him were stolen by him and his companions from the factory after committing murder of factory owner. In his cross-examination this witness admitted that he was not the investigating officer of the case and that accused Sanjeev @ Pappu was arrested by SHO, Indergarh, who also conducted personal search of accused Sanjeev @ Pappu and that he did not make any inquiry from accused Sanjeev @ Pappu and it was SHO Indergarh who had made inquiry from the accused. He has further admitted the fact that in Ex. P.1 there is no mention of numbers of the notes recovered from accused Vinod. 18. Shri Madhusudan Rai (P.W. 26) at the relevant time was posted as ACJ (JD) & JM No. 13, Jaipur City, Jaipur in whose presence identification of the recovered Mobile Phone was conducted on 23.8.2007 and the mobile phone was identified by witness Prakash Chandra Jangid. 19. Bhanwar Lal (P.W. 29), at the relevant time, was posted as Sub-Inspector at Police Station Vishvakarma, Jaipur. Under the instructions of the Station House Officer, on 3.6.2007 he along with constable Jagdish, Ramswaroop and Mahavir proceeded from the police station in search of accused Pappu @ Sanjeev and Vinod. Firstly, they went to village Jaisingpur, District Farrukhabad (UP) where they did not find accused Pappu etc. then went to village Indragarh, District Kannoj, maternal village of accused Pappu and on 5.6.2007 with the help of Station House Officer, Police Station Indragarh and other police personnel arrested accused Pappu @ Sanjeev. During the course of personal search of accused Pappu @ Sanjeev one mobile phone Nokia 1100 and 18 notes of Rs. 500 denomination i.e. Total nine thousand rupees were recovered. Accused Pappu disclosed that the mobile phone and the cash amount was of Banshidhar which he had brought after committing murder of Banshidhar and Mahendra. Ex. P. 43, Memo of recovery of Mobile Phone and cash amount was prepared. Accused was arrested through arrest memo Ex. P.49. In his cross examination, the witness has admitted that arrest memo Ex. P.49 was not prepared at the place from where the accused was arrested but the same was prepared at the police station Indragarh. 20. Ex. P. 43, Memo of recovery of Mobile Phone and cash amount was prepared. Accused was arrested through arrest memo Ex. P.49. In his cross examination, the witness has admitted that arrest memo Ex. P.49 was not prepared at the place from where the accused was arrested but the same was prepared at the police station Indragarh. 20. Poonam Chand Bishnoi (P.W. 30), at the relevant time, was posted as Station House Officer, Police Station Vishvakarma, Jaipur. In his statement this witness has deposed that on 21.5.07 he was posted as Incharge of the Police Station and upon receiving information regarding the incident he reached at the spot and found Banshidhar and Mahendera murdered there. Upon a written complaint (Ex. P.41) submitted by Om Prakash Jangid and founding the prima facie case for offence under Section 302 and 394 IPC, investigation commenced. Necessary memos were prepared in the presence of motbirs. In the room where the incident took place, Voter Identity Card (Ex. P.11) of accused Sanjeev Kumar was found which was recovered through recovery memo Ex. P.40 and one used pants (Ex. 1/1) of Raju Thakur, containing blood stains was also recovered through recovery memo Ex. P.28. During the custody, accused Vinod Dhobi gave information under Section 27 of the Evidence Act regarding the place from where he had kept watch when the other accused were committing murder of Banshidhar and Mahendra. On 15.6.2007 arrested accused Pappu @ Sanjeev gave information regarding concealment of the weapon of offence (iron rod) and the weapon of offence was recovered at his instance from the place disclosed by him and recovery memo Ex. P.28 was prepared. 21. We have heard the rival submissions and have given our thoughtful consideration to the arguments raised. Undoubtedly, the case of prosecution hinges upon circumstantial evidence. The learned trial Court convicted and sentenced the accused persons, relying upon the following circumstances:-- "1. That the accused fled away immediately after the incident and remained missing till their arrest. 2. That a sum of Rs. 9000/- and one mobile phone belonging to deceased-Banshidhar was found in the possession of the accused Sanjeev and cash amount of Rs. 3300/- and two silver coins were recovered from accused Vinod. 3. Articles allegedly stolen at the time of incident were found in the possession of accused Vinod at the time of his arrest. That a sum of Rs. 9000/- and one mobile phone belonging to deceased-Banshidhar was found in the possession of the accused Sanjeev and cash amount of Rs. 3300/- and two silver coins were recovered from accused Vinod. 3. Articles allegedly stolen at the time of incident were found in the possession of accused Vinod at the time of his arrest. Furthermore, recovery of iron rod was effected in pursuance of the disclosure statement made by accused Sanjeev. 4. Voter ID card of accused Sanjeev was found in the room where the incident had taken place." 22. Now, we shall discuss the circumstances mentioned hereinabove one by one. 1. Fleeing away of accused after the commission of crime: In support to this circumstance, the learned trial court has heavily relied upon the testimony of PW-15-Rajesh and PW-17- Vijay who were also present in the factory when the crime was committed. The accused were not the only persons who were last seen with the deceased as PW-15 and PW-17 were also present in the factory at relevant time when the crime was committed. As per the prosecution, the accused Vinod slept with PW-17 in the factory on the night of the incident but in the morning he was not found. Accused Sanjeev @ Pappu along with other co-accused Raju Thakur went out of the factory on some pretext but did not return and remained missing up till his arrest. The conduct of the accused led the learned trial Court to presume that the accused might have given effect to the crime otherwise they would have been bold enough to remain at the spot. To us, there is no evidence on record to the effect that the accused Sanjeev returned back to the factory in the late night and then committed the crime. In their statement under Section 313 Cr.P.C. the accused have given explanation that they were frightened after hearing about the incident and apprehending that they may be implicated in the crime falsely, they fled away from the spot. The explanation appears to be legitimate because they were the workers in the factory and the first one to come in the ambit of doubt. Human psychology to handle the situation differs from persons to person and since the accused were belonging to another state, there explanation cannot be rejected out rightly. The explanation appears to be legitimate because they were the workers in the factory and the first one to come in the ambit of doubt. Human psychology to handle the situation differs from persons to person and since the accused were belonging to another state, there explanation cannot be rejected out rightly. It is not a case of last seen, but rather the subsequent conduct of the accused which may be considered improper. There is no evidence on record to prove that the accused persons or any other worker of the factory were having information about cash amount being available in the office on the date of the incident, so as to persuade the accused to commit crime. Though, robbery has been put forth as the motive for the crime but neither the brothers of deceased Banshidhar nor the workers of the factory were having knowledge regarding the sale of the said factory. The learned trial Court has presumed that since the accused fled away, he might have committed the crime, overlooking the fact that besides the accused, other persons were also present in the factory. As per the prosecution, the accused persons caused death of deceased persons by hitting them with iron rod. The medical evidence disclose that at least 7-8 blows of iron rod are required for causing death but no hue and cry was raised by the deceased persons, when they were being beaten so as to attract the attention of the PW-15 Rajesh and PW-17 Vijay who were sleeping in the factory itself at the time of commission of crime. 2. Recovery of blood stained hammer and gauge roller at the scene of occurrence:-- At the scene of occurrence one hammer and gauge roller were also found stained with blood but these articles were not seized and sent for chemical examination. It does not appear convincing that three persons will commit the crime using one iron rod and if each was armed with weapon they will take the iron rod with them leaving the bloodstain hammer and gauge roller really at the scene of occurrence. There are many missing links but the learned trial court has overlooked the same and held the circumstances stand proved and the lacuna in the prosecution case was filled by the trial court after making presumptions. There are many missing links but the learned trial court has overlooked the same and held the circumstances stand proved and the lacuna in the prosecution case was filled by the trial court after making presumptions. To us, fleeing away of the accused after the commission of the crime is not sufficient to link them with the crime in the facts and circumstances of the case. 3. Recovery of money, mobile phone and silver coins from the accused. The accused Sanjeev came to be arrested on 05.06.2007 and accused Vinod came to be arrested on 09.06.2007 in the state of UP suddenly by the police. At the time of arrest Rs. 9000/- and one Nokia phone was found from the person of accused Sanjeev and Rs. 3500/- and two silver coins having inscription of the deceased's factory were found from the person of accused Vinod respectively. Seizure memo was prepared by Devraj, SHO Indargarh but in the seizure memo the serial No. of currency notes are not mentioned. The SHO, Indargarh was not examined to prove the serial No. of recovered notes and thus, it has not been established that the currency notes recovered from the accused persons were the same, which were robbed from the factory of the deceased and thus, recovery of currency notes is too fragile to connect the accused person with the crime. No independent witness was called during the course of recovery. So far as the recovery of Nokia phone from accused Sanjeev is concerned, it has been found from his person at the time of arrest. From the evidence, it is revealed that the said Nokia phone was in the name of Prakash Jangid PW-5 and not in the name of deceased Banshidhar. It has not been established that the phone was ever used by accused Sanjeev after it came into his possession. The phone was recovered not upon the disclosure statement made by this accused but from his person at the time of his arrest which was sudden. It cannot be believed that the accused will keep the mobile with him when he was not using the same. Besides this, it has not been established that the said Nokia phone was with the deceased at the time when the crime was committed because in the FIR there is no mention about missing of Nokia Phone. It cannot be believed that the accused will keep the mobile with him when he was not using the same. Besides this, it has not been established that the said Nokia phone was with the deceased at the time when the crime was committed because in the FIR there is no mention about missing of Nokia Phone. Similarly, the recovery of silver coins from the person of accused Vinod is not convincing. He was arrested on 09.06.2007 and after about 18 days of the incident, alleged recovery was made. Why he will carry these silver coins with him even after such long period of time, since, the commission of crime, no satisfactory explanation is coming forth. The arrest of both the accused was sudden and thus stolen articles found from the person of accused does not appear to be convincing and hence the recovery of stolen articles and cash appears to be crude padding by the police which is not sufficient to connect the accused with the crime. 4. Recovery of iron rod. One iron rod has been recovered upon the disclosure statement of the accused. As per FSL report, blood of human origin was found upon it but the blood group of deceased persons has not been determined, thus, it cannot be established that this iron rod was used in the crime and thus, recovery of iron rod is not sufficient to link the accused with the crime. 5. Recovery of the ID card of accused Sanjeev Kumar from the room where crime was committed. Since, accused Sanjeev was working and residing in the factory, it is not unusual that his voter ID card was found in the factory premises. May be, the voter ID card has been placed there in order to implicate the accused in the crime. Having regard to the fact that the accused was working and residing in the factory, this piece of circumstance is not sufficient to link the accused with the crime. Apart from the above mentioned circumstances, it is pertinent that the room where the crime was committed, although, was found ransacked but no finger impressions were lifted from the scene of occurrence and no evidence to this effect was brought on record, which should have been the best piece of circumstantial evidence to connect accused persons with the crime and also to fill up the missing links. FIR too, was lodged against unknown persons and merely doubt has been raised qua accused person as they remained missing after commission of crime. The learned trial Court in para No. 38 of its judgment made the chain of circumstantial evidence complete on the basis of presumption only and relied upon it to convict and sentence the accused persons but presumption, however strong, cannot be construed as proof or sufficient evidence. 23. As a result of above discussion, the chain of circumstances in the present case, in our opinion, is not complete. There are many missing links, leaving room for the doubts to creep into hence it is unsafe to connect the accused with the crime on the basis of the circumstances put forth by the prosecution. 24. Resultantly, the appeal filed by the accused appellant succeeds and his conviction and sentence recorded by the learned trial Court is hereby set aside and the accused appellant is acquitted from all the charges. 25. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely Vinod Kumar 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 remain 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.