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2017 DIGILAW 1456 (RAJ)

Liyakat S/o Fattu v. State of Rajasthan

2017-07-04

MANOJ KUMAR GARG, MOHAMMAD RAFIQ

body2017
JUDGMENT : MOHAMMAD RAFIQ, J. 1. These appeals seek to challenge judgment and order dated 01.07.2014 passed by the Additional Sessions Judge, Tijara, District Alwar, in Sessions Case No. 50/2012, whereby learned trial court convicted and sentenced accused-appellants Liyakat, Kala @ Kallu @ Shesham and Afsar @ Afsa, as under:- Accused-appellants Conviction Sentence Liyakat (Appeal No. 868 of 2014) Kala @ Kallu @ Shesham (Appeal No. 1016 of 2014) Afsar @ Afsa (Appeal No. 344 of 2016) Under Section 392 IPC Each to undergo five years Rigorous Imprisonment with fine of Rs. 1000/- in default of payment of fine, each to further undergo one month’s rigorous imprisonment Under Section 302 IPC Each to undergo Life Imprisonment with fine of Rs. 2000/- in default of payment of fine, each to further undergo two months imprisonment All the aforenoted sentences were ordered to run concurrently 2. Case of the prosecution is that one Ilyas Khan submitted a written report to the Superintendent of Police, Alwar, on 21.04.2010 alleging that his brother Nasiruddin used to drive his own pickup van bearing registration no. RJ-32-GA-6038, on hire basis. On 20.04.2010 at around 6:00 PM when Nasiruddin was at Tijara stand, five persons hired his pickup van for transporting their she-buffaloes from Ramgarh to Alapur. At that time, he was having mobile phone number 9982123905. When the complainant called Nasiruddin on that mobile phone number, that was found switched off and therefore they kept on searching for him but could not succeed. They went to Police Station, Tijara, in the morning of 21.04.2010 to lodge ‘missing person report’ but the police personnel of that police station did not accept their report. It was further alleged that those five persons hired the pickup van for the purpose of looting and killing Nasiruddin. Those five persons killed his brother Nasiruddin and threw his dead body near the Agricultural Research Centre, Ramgarh and took the pickup van as also the mobile phone with them. The dead body of Nasiruddin has been identified in the hospital. The Superintendent of Police, Alwar, then sent the said report to the Police Station, Tijara. 3. The Station House Officer, Police Station, Tijara, on the basis of the aforesaid written report, lodged regular First Information Report No. 153/2010 on 21.04.2010 at 11:05 PM for offence under Sections 364, 302 and 201 of the Indian Penal Code and commenced investigation. The Superintendent of Police, Alwar, then sent the said report to the Police Station, Tijara. 3. The Station House Officer, Police Station, Tijara, on the basis of the aforesaid written report, lodged regular First Information Report No. 153/2010 on 21.04.2010 at 11:05 PM for offence under Sections 364, 302 and 201 of the Indian Penal Code and commenced investigation. The police, after investigation, filed charge-sheet against four accused, namely, Liyakat (Appeal No. 868/2014), Kala @ Kallu @ Shesham (Appeal No. 1016/2014), Afsar @ Afsa (Appeal No. 344/2016) and one Asu @ Aas Mohammad for offence under Sections 396, 302, 120B of the IPC. Since the case was exclusively triable by the Court of Sessions, it was committed there, wherefrom the trial of the case was made over to the Court of Additional Sessions Judge, Tijara. The charges for those offences were framed against the accused, which they denied and claimed to be tried. 4. During the trial, Umar Mohammad absconded on 30.10.2012 and therefore the trial was conducted against rest of the accused persons. Accused Asu @ Aas Mohammad was proceeded against before the Juvenile Justice Board and thus the trial in the present case proceeded against remaining three accused persons. The prosecution, in support of the case, examined twenty nine witnesses and exhibited forty six documents. The accused neither produced any witness nor exhibited any document. The trial court on conclusion of the trial and after hearing the learned counsel for the parties, convicted and sentenced the accused-appellants in the manner indicated above. Hence these appeals. 5. Mr. Anuroop Singhi, learned counsel for accused-appellant Liyakat, argued that the trial court has erred in law in convicting the accused-appellant as there is no direct evidence against him for having committed the offence. Entire prosecution case hinges upon the circumstantial evidence. Circumstances are not such wherefrom one can presume that the accused-appellant committed the offence. Statement of Iliyas (PW-1), brother of the deceased, Kalsum (PW-8), wife of the deceased, Rafiq (PW-9), son of the deceased, and Jafaruddin (PW-12), are not at all reliable. They all are interested witnesses and their statements are full of embellishment and improvements. Jafaruddin (PW-12) though described as a chance witness but in fact is a planted witness. Statement of Iliyas (PW-1), brother of the deceased, Kalsum (PW-8), wife of the deceased, Rafiq (PW-9), son of the deceased, and Jafaruddin (PW-12), are not at all reliable. They all are interested witnesses and their statements are full of embellishment and improvements. Jafaruddin (PW-12) though described as a chance witness but in fact is a planted witness. Ilyas (PW-1) is a witness of hearsay because, as per his own showing, he received the information from Kalsum (PW-8) and Rafiq (PW-9), who told him about their receiving a phone call from the deceased, who allegedly stated to have been going to Ramgarh along-with the appellants and others for bringing shebuffaloes. The phone call details have not been produced on record and therefore their testimony cannot be believed. Jafaruddin (PW-12), who is also stated to be the owner of a pickup van, claimed that he used to ply his own vehicle. On the fateful day, while he was coming back to Tijara with passengers at about 7:00 PM, Nasiruddin with his pickup van met him on the way near Khalilpur. On his asking, Nasiruddin told him that he was going to Ramgarh for fetching she-buffaloes. The fact that this witness is a planted witness, is evident from the nature of statement made by him that he even asked Nasiruddin that he should go to that area only if those who have hired him are known persons. Thereupon, Nasiruddin allegedly told him that one of those persons was Liyakat and another was Kala, who had hired him and remaining two persons are relatives of Liyakat and their names were Afsar and Asu. He also told that his van has been hired by them for a sum of Rs. 1200/- and that there is no apprehension to his life. Apparently, this witness is speaking a lie and not the truth because at that time, he could not have presupposed that those, who hired deceased Nasiruddin, would commit his murder. It is argued that the statements of Ilyas (PW-1) and Jafaruddin (PW-12) cannot be read against the accused-appellant because statements given by them naming him as accused have not been put to accused-appellant while recording his statement under Section 313 of the Code of Criminal Procedure, which has caused serious prejudice to the accused-appellant. 6. It is argued that the statements of Ilyas (PW-1) and Jafaruddin (PW-12) cannot be read against the accused-appellant because statements given by them naming him as accused have not been put to accused-appellant while recording his statement under Section 313 of the Code of Criminal Procedure, which has caused serious prejudice to the accused-appellant. 6. Learned counsel argued that as per the postmortem report (Exhibit P-29), there was no injury on the body of the deceased. The cause of death was stated to be asphyxia due to antemortem strangulation, which was stated to be sufficient in the ordinary course of nature to cause death. However, viscera was taken to detect out any alcohol or poison. Even recovery of pickup van is doubtful as Rajesh Kumar (PW-14) has stated that the vehicle was not recovered from the accused and yet he has not been declared hostile. Clothes of the deceased were not produced as articles in the court during trial, benefit of which should go to the accused. When, on the basis of very same evidence, the charges for offence under Sections 396 and 120B IPC have not been found proved against the accused-appellants, their conviction for offence under Section 392 IPC could not be recorded. Mr. Anuroop Singhi, learned counsel for accused-appellant, has argued that the trial court has seriously erred in convicting the accused-appellants for offence under Section 302 IPC, even though there was no charge framed for that offence. 7. Mr. Azad Ahmed, learned counsel for accused-appellant Kala @ Kallu @ Shesham, argued that the trial court has based its findings on surmises and conjectures and has not thoroughly marshalled the evidence. Chain of circumstances against the accused was not complete. The prosecution has failed to establish the motive of the crime. There was no enmity between the accused and the deceased. The vehicle had been recovered from deserted place and the charge of looting the vehicle has not been found proved against the accused-appellant. In fact, the accused-appellants were first arrested by one constable Jagdish (PW-26) on 23.04.2010 in connection with some other offence in the F.I.R. No. 108/2010 lodged with Police Station, Sikri. The pickup van in question was shown to have been recovered by the police personnel of the Police Station, Sikri. In fact, the accused-appellants were first arrested by one constable Jagdish (PW-26) on 23.04.2010 in connection with some other offence in the F.I.R. No. 108/2010 lodged with Police Station, Sikri. The pickup van in question was shown to have been recovered by the police personnel of the Police Station, Sikri. It is alleged that accused-appellant Afsar @ Afsa was driving the vehicle, whereas accused-appellants Kala @ Kallu and Liyakat were sitting by his side. However, nothing has been said with regard to accused Umar Mohammad. Accused were arrested in connection with the FIR No. 108/2010 lodged with Police Station, Sikri and thereafter they were also shown to have been arrested in the present case. They were prosecuted for offence under Section 412 IPC and Section 3/25 of the Arms Act in Sessions Case No. 29/2010 (08/2011), which came to be decided vide judgment dated 03.06.2011 by the Court of Additional Sessions Judge No. 2, Deeg, District Bharatpur, by which Afsar was convicted and sentenced for offence under Sections 412 IPC and 3/25 of the Arms Act, whereas Kala and Liyakat were convicted and sentenced for offence under Section 412 IPC. They have preferred appeals against that judgment but the fact remains that if they have been convicted for receiving a stolen/looted vehicle, that would mean that they themselves were not held guilty of stealing or looting the vehicle, their trial in the present case was therefore wholly illegal. 8. It is argued that the accused-appellant was never lastly seen with the deceased by anyone but a false evidence is sought to be created by producing wife of the deceased, who alleged that the deceased accompanied the accused-appellants to Ramgarh. It is argued that Kalsum (PW-8), wife of the deceased, was not even present at the place of occurrence or even at the place from where the vehicle was allegedly hired. The trial court has therefore erred in relying on her testimony for convicting the accused-appellants. It is next argued that the accused-appellant is a young boy. He is a person of sterling character as no criminal case was ever registered against him. Accused-appellant Kala @ Kallu has not been identified by any person. He is even not related to other two co-accused. His arrest was shown in the criminal case (F.I.R. No. 108/2010) registered with the Police Station, Sikri, on the charge of receiving the stolen property. Accused-appellant Kala @ Kallu has not been identified by any person. He is even not related to other two co-accused. His arrest was shown in the criminal case (F.I.R. No. 108/2010) registered with the Police Station, Sikri, on the charge of receiving the stolen property. The appellant on that basis has been directly made an accused in the present case. There is no direct or indirect evidence against the accused-appellant of his involvement in the present case. The appeal therefore deserves to succeed. 9. Mr. Rajesh Choudhary, learned Amicus Curiae appearing for accused-appellant Afsar @ Afsa, argued that the contents of the F.I.R. itself go to show that accused-appellant Afsar @ Afsa has not been named in the F.I.R. In the present case, he was for the first time named by the complainant in his police statement as well as in the court statement. He has been falsely implicated in the present case. The informant and other witnesses have made improvement in their original version. The trial court has not considered the evidence produced by the prosecution in correct perspective. The photograph of the dead body of the deceased shows that one towel was found thereon but the family members of the deceased have stated that ‘kurta’ and ‘dhotti’ of the deceased were having blood stains, which has not been proved. Conviction of the accused-appellant for offence under Section 302 IPC is wholly unjustified. It is argued that the trial court has ignored the important evidence of Dr. Rakesh Tuteja (PW-20), who has stated that as per the FSL report it was proved that the deceased had consumed alcohol before the death. The story disclosed by the prosecution witnesses is therefore not corroborated and has not been proved as to where and with whom the accused consumed the liquor. There is therefore missing links in the chain of circumstances sought to be proved by the prosecution. According to the prosecution, the accused-appellant was driving the vehicle on 23.04.2010 when Jagdish (PW-26), Constable of Police Station, Sikri, intercepted the vehicle in ‘naaka bandi’ though the incident is alleged to have taken place in the night intervening 20th and 21st of April, 2010 but the vehicle was recovered on 23.04.2010. It is quite possible that the vehicle was picked by the accused from unknown location where it was lying deserted. It is quite possible that the vehicle was picked by the accused from unknown location where it was lying deserted. Nothing has been proved as to what was done by the accused on 22.04.2010 and where was the vehicle stationed on that date. Conviction of the accused-appellant for offence under Section 392 IPC is therefore wholly unjustified. Moreover, there are serious contradictions in the statements of the prosecution witnesses. 10. Mr. R.S. Raghav, learned Public Prosecutor appearing for the respondent State, opposed the appeals and supported the judgment and order of the learned trial court. Learned Public Prosecutor has taken the court through various statements of the prosecution witnesses as also various memos exhibited by the prosecution during trial, the reference of which shall be made at the appropriate place hereinafter. 11. Perusal of the First Information Report (Exhibit P-2) and the statements of various prosecution witnesses show that the pickup van of the deceased was hired by five persons from Tijara bus stand for transporting their she-buffaloes from Ramgarh to Allahpur (Tijara). Kalsum (PW-8), wife of the deceased, Rafiq (PW- 9), son of the deceased, and Jafruddin (PW-12), who also ply his pickup van on hire basis, met the deceased on the way near Khalilpur, have named Liyakat as the leading person, who hired the vehicle. If we examine the statement of Kalsum (PW-8), she was confronted with her previous version given to police, wherein she has named Liyakat and his three other relatives as those who hired the vehicle and claimed that the deceased himself told him this fact when he made a telephonic call in that night. But then, she has also stated that on the next day at around 7:00-8:00 PM when she tried to contact him on phone, the phone was found switched off. On the following day when they went to Police Station, Tijara, for lodging the report, they learnt that her husband was lying dead at a certain place between Ramgarh and Naugaon and the vehicle has been looted. Liyakat was named as the one, who hired the vehicle. They went to the Police Station but when the police personnel refused to take the report on the ground of jurisdiction, the written report was submitted directly to the Superintendent of Police, Alwar. Liyakat was named as the one, who hired the vehicle. They went to the Police Station but when the police personnel refused to take the report on the ground of jurisdiction, the written report was submitted directly to the Superintendent of Police, Alwar. Kalsum (PW-8), the wife of the deceased, was confronted with the police statement (Exhibit D-2) recorded on 23.04.2010, wherein not only she did not name Liyakat and other three accused but also stated that some unknown persons had hired the vehicle, but she failed to give any explanation. 12. Rafiq (PW-9), the son of the deceased, in his court statement has gone a step further by mentioning names of all four accused viz. Liyakat, Asu, Afsar and Kala, who allegedly booked the vehicle on 20.04.2010 and then looted the same. He also stated that his father told him on phone that these named persons had hired his vehicle. When his father did not return back in the night, in the following morning he along-with other villagers went to the police station for lodgment of the report. He too was confronted with his police statement (Exhibit D-2) recorded on 23.04.2010. At this stage, it is made clear that both the police statements of Kalsum and Rafiq have been exhibited as Exhibit D-2. All what he has stated is that four persons had hired the vehicle but he did not mention that his father told him on phone name of those four persons who hired the vehicle to fetch she-buffaloes from Ramgarh. Though he did not name any person. This witness fails to give any explanation for such a significant omission. Informant Ilyas has been produced and examined as PW-1. He too in the court statement has named all the accused as those who hired the pickup van of the deceased in the evening of 20.04.2010 and stated that in the following morning, when they went to Police Station, Tijara, to lodge the report, the police personnel did not accept the report. Sarpanch also accompanied them. A constable of Police Station, Tijara, told that one dead body was found in the area of Police Station, Ramgarh. When the identification marks of the dead body were disclosed, they suspected that this could be the dead body of deceased Nasiruddin. Sarpanch also accompanied them. A constable of Police Station, Tijara, told that one dead body was found in the area of Police Station, Ramgarh. When the identification marks of the dead body were disclosed, they suspected that this could be the dead body of deceased Nasiruddin. They were informed that the dead body was being taken to Hospital at Alwar, therefore, they directly went to Alwar and submitted the written report to the Superintendent of Police, Alwar (Exhibit P-1), which came to be registered as regular F.I.R. No. 153/2010 at Police Station, Tijara, on 21.04.2010 (Exhibit P-2). Inquest report of the dead body is Exhibit P-3, which was prepared on 21.04.2010. This witness was also confronted with the written report (Exhibit P-1) as to why name of Liyakat or any other accused was not named therein. He too failed to give any explanation. He was also confronted with his police statement Exhibit D-1, as to why he did not name any person, he could not explain this discrepancy. It is to be noted that the police statements of Ilyas (cousin of deceased Nasiruddin) and Jafaruddin both have been marked as Exhibit D-1. 13. Having analyzed the statements of three witnesses, who are closely related to the deceased i.e. Kalsum (PW-8), wife of the deceased, Rafiq (PW-9), son of the deceased, and Ilyas (PW-1), cousin of the deceased, we now come to the statement of socalled independent witness Jafaruddin (PW-12), who happened to be the chance witness. He claimed that on the fateful day i.e. 20.04.2010, he was going in his vehicle (pickup van) from Bilaspur towards Tijara at around 7:00 PM. On the way, he met deceased Nasiruddin near Khalilpuri, who was carrying four persons in his pickup van. On his asking, Nasiruddin told him that he was going to Ramgarh to fetch she-buffaloes and that his vehicle has been hired for that purpose. Upon this, Jafaruddin (PW-12) told him that he should go to that area only if those, who have hired his vehicle, are known persons. Then Nasiruddin informed him that one of the persons, who hired him, was Liyakat and another one was Kala, who are with him. Jafaruddin then still persisted with his queries and enquired about remaining two persons in the vehicle. Thereupon, Nasiruddin told him that these two persons were relative of Liyakat and their names were Afsar and Asu. Then Nasiruddin informed him that one of the persons, who hired him, was Liyakat and another one was Kala, who are with him. Jafaruddin then still persisted with his queries and enquired about remaining two persons in the vehicle. Thereupon, Nasiruddin told him that these two persons were relative of Liyakat and their names were Afsar and Asu. Then Jafaruddin made further queries as to what amount has been fixed as the fare. Nasiruddin told him that a sum of Rs. 1200/- has been agreed to be paid as fare. Even at this, Jafaruddin was not satisfied and further enquired from Nasiruddin whether there is any apprehension to his life, then Nasiruddin assured him that there was no such danger to his life, and then told that Liyakat and Kala were sitting on the front seat and that Afsar and Asu were sitting on the rear seat of the vehicle. This witness then stated that he went to Delhi on 21st and returned back on 22nd, and when he came back, Rafiq s/o the deceased met him and enquired about the deceased. He thereupon told him that he happened to meet his father in pickup van vehicle on 20.04.2010 and narrated the entire story. Statement of this witness under Section 161 Cr.P.C. was recorded by the police on 23.04.2010, which has been marked as Exhibit D-1. There is a striking similarity between this statement and his police statement recorded under Section 161 Cr.P.C. on 23.04.2010 presumably because the police statement was recorded after arrest of the accused by the police personnel of Police Station, Sikri, in F.I.R. No. 108/2010. 14. Let us now examine whether or not the defence has rightly argued that the accused were implicated in this case only because a looted vehicle was found in their possession and was intercepted and seized by constable Jagdish (PW-26). It was Jagdish and another constable Maharaj Singh, who accompanied Ravindra Singh Shekhawat, S.H.O. Police Station Sikri, on 23.04.2010, for the purpose of ‘naaka bandi’ near Mister-wali-kuia at Kaithwada-Gulwada road. They saw a vehicle coming from the side of Kaithwada and they checked the same. The said vehicle was being driven by one person and two persons were sitting in that vehicle. They prepared the seizure memo of the vehicle at 10:45 PM on 23.04.2010. They saw a vehicle coming from the side of Kaithwada and they checked the same. The said vehicle was being driven by one person and two persons were sitting in that vehicle. They prepared the seizure memo of the vehicle at 10:45 PM on 23.04.2010. Obviously, the vehicle, which was intercepted at certain destination by two constables, must have taken some time to reach the police station when seizure memo was prepared. Jagdish has appeared as PW-26 as an attesting witness to this seizure memo and stated as above. When the vehicle was checked, Afsar S/o Rahman was driving the same and Kala S/o Chhote Khan and Liyakat S/o Fattu, R/o Chhajju-ka-bas, Village Khilora, Police Station Ramgarh, District Alwar, were sitting by his side. When the enquiry was made about the registration certificate and other papers of the vehicle, these persons told that they did not have any papers and that they have looted this vehicle by murdering one person. The S.H.O. prepared the seizure memo of the vehicle, which was Exhibit P-33. In the search of these persons, a 315 bore country made pistol with loaded live cartridges was recovered from the possession of Afsar, which was seized vide Exhibit P-34 and another loaded 315 bore country made pistol was recovered from accused Kala, which was also seized vide Exhibit P-35. Two live cartridges of 315 bore country made pistol was recovered from the possession of Liyakat, which was also seized and sealed vide Exhibit P-36. They were arrested. Accused Afsar was arrested vide arrest memo Exhibit P-37, Liyakat vide Exhibit P-38 and Kala vide Exhibit P-39. In crossexamination, this witness has stated that at the time of preparation of seizure memo, no independent witness was present and therefore they could not be associated with such recoveries. Maharaj Singh, another constable of Police Station, Sikri, who is attesting witness to seizure memo of the vehicle (Exhibit P-33), has been produced as PW-28. He has also given exactly similar statement. Ravindra Singh Shekhawat, the then S.H.O., Police Station Sikri, has not been produced as witness. Maharaj Singh, another constable of Police Station, Sikri, who is attesting witness to seizure memo of the vehicle (Exhibit P-33), has been produced as PW-28. He has also given exactly similar statement. Ravindra Singh Shekhawat, the then S.H.O., Police Station Sikri, has not been produced as witness. However, Surendra (PW-27), the then S.H.O. Police Station, Tijara, apart from proving the other stages of investigation, exhibits and various memos of recoveries etc., has stated that the seizure memo of Mahendra pickup vehicle prepared by the police personnel of Police Station, Sikri, in F.I.R. No. 108/2010, was Exhibit P-33, and seizure memos of 315 bore country made pistols were Exhibit P-34 and Exhibit P-35. He has also stated about the seizure memos of pistols vide Exhibit P-33 and Exhibit P-34 and live cartridges vide Exhibit P-35, referred to above. He has stated that aforementioned three accused were shown arrested in the present case by obtaining production warrants from the Court by the Sub Inspector Mahendra. Their arrest memos respectively were Exhibit P-24, Exhibit P-25 and Exhibit P-26. 15. Obviously the place from where the vehicle was intercepted by the police of Police Station, Sikri, must be at certain distance from the police station and eventually it was seized and the seizure memos were prepared at Police Station, it must have consumed some time. Ravindra Singh, who prepared the memo, has not been produced as a witness and that Jagdish and Maharaj Singh have stated that such memos were prepared at the Police Station. There are two significant aspects about the statements of Jagdish (PW-26) and Maharaj Singh (PW-28). In the process, if some time must have been consumed, even then the seizure memo (Exhibit P-33) is indicated to have been prepared at 10:45 PM on 23.04.2010. Since the vehicle was recovered from the possession of the accused-appellants, it is at that stage that the Investigating Officer, in the present case, recorded statement of Jafaruddin (Exhibit D-1) under Section 161 Cr.P.C. on 23.04.2010, but he has not indicated any time of recording such statement and therefore the allegation of the defence that Jafaruddin is a planted witness is not completely unfounded because it is through this witness that names of three accused with such a graphic description were introduced as if this witness knew that something untoward would surely happen with the deceased. Second and most important aspect is that in the seizure memo itself the S.H.O. Police Station Sikri, has incorporated that the accused told him that they have looted this vehicle by murdering its driver, which part is not admissible in evidence being hit by Section 25 of the Evidence Act. Besides this, the vehicle has been directly seized without there being any information recorded under Section 27 of the Evidence Act and therefore it cannot be considered as discovery of fact pursuant to such information as far as trial of this case is concerned. Even the statements of Jagidsh (PW-26) and Maharaj Singh (PW-28) to the extent they have stated that the accused-appellants confessed to them that they looted this vehicle after murdering its driver, cannot be read in evidence as admissible against the accused-appellants. 16. Having analyzed the seizure memo of vehicle (Exhibit P-33) and statements of Jagdish (PW-26) and Maharaj Singh (PW-28), let us now go back to the evidence collected in the present case. The vehicle aforesaid was shown to have been seized in the present case vide Exhibit P-25 from possession of the accused-appellants by the police personnel of Police Station, Sikri, pursuant to order of the Judicial Magistrate, Nagar, District Bharatpur, dated 22.04.2010. The memo of seizure indicates that on thorough inspection of the vehicle neither blood marks nor any hair etc. were found in the vehicle, which was lying in the Police Station, Sikri. Apart from Jafaruddin (PW-12), the police has also sought to prove that the accused was lastly seen with the deceased, by producing Ali (PW-21), who has stated that he was running a shop of juice machine near cinema hall at Tijara. The police made enquiry from him. He told them that Nasiruddin consumed two glasses of juice from his shop at 4:00 PM. This witness was confronted with his police statement (Exhibit P-31), in which he allegedly stated that two more persons were with him in the vehicle and that he was saying that he had the booking to go to Ramgarh to fetch she-buffaloes. This witness, when confronted with the police statement, denied having given any such statement to the police, wherein he stated that he took three glasses of juice; one for himself and two for other two persons and that he said that he would pay the bill of juice after he would return from Ramgarh. 17. This witness, when confronted with the police statement, denied having given any such statement to the police, wherein he stated that he took three glasses of juice; one for himself and two for other two persons and that he said that he would pay the bill of juice after he would return from Ramgarh. 17. There is another discrepancy in the investigation of the police. The inquest memo (Exhibit P-3) does not indicate as to what kind of clothes the deceased was wearing at that time. However, the memo of state/identification of dead body (Exhibit P-4), apart from the injuries, indicates that the accused was wearing sando baniyan and ‘lungi’ of red checks and black leather shoes. Even then, the police recovered the clothes of the deceased which the deceased was allegedly wearing at the time of incident vide Exhibit P-9. The memo states that Rafiq s/o deceased Nasiruddin (PW-9) produced the clothes and explained that the deceased was wearing these clothes at the time of the incident but the clothes have been washed. These clothes do not prove anything against the accused-appellants. The police has shown recovery of registration and fitness certification of the vehicle at the instance of accused Asu @ Aas Mohammad from his residence, who was proceeded against by the Juvenile Justice Board, and was not even shown present in the vehicle when it was intercepted by the police party of the Police Station, Sikri, in the ‘naaka bandi’. Be that as it may, this recovery does not prove anything against the accused-appellants. 18. Then the police has shown recovery of mobile handset allegedly belonged to the deceased. The police also shown recovery at the instance of accused Kala @ Kallu vide Exhibit P-11 of his own mobile handset, which also cannot be taken as evidence against him. Then the police has shown recovery of another mobile handset at the instance of Liyakat (Exhibit P-13), which was also his own mobile. But the police has shown recovery of mobile handset of deceased Nasiruddin at the instance of accused Afsar. This recovery has been shown pursuant to the information under Section 27 of the Evidence Act on 03.05.2010 at the instance of Afsar from his residence. But the police has shown recovery of mobile handset of deceased Nasiruddin at the instance of accused Afsar. This recovery has been shown pursuant to the information under Section 27 of the Evidence Act on 03.05.2010 at the instance of Afsar from his residence. Such a belated recovery, especially when the case of the prosecution that the accused continued to run in the looted vehicle from the date on which it was looted till they were intercepted in the intervening night of 20th and 21st April, 2010, cannot be believed that the accused intervening the date of loot and date of their arrest would come to his house to conceal the mobile handset of the deceased. Recovery apparently appears to be the result of police padding. Besides, the place of incident and the place from where the dead body was recovered and identified at the instance of the accused, also cannot be said to be discovery of any new fact pursuant to information given by the accused. 19. Significantly, the accused-appellants in the present case were also separately tried for offence under Section 412 of the IPC and Section 3/25 of the Arms Act for receiving the looted property and for carrying unlicensed arms and were convicted and sentenced prescribed for that offence. The legal implication would be that they cannot be separately proceeded against in trial for offence under Section 392 IPC. Section 412 IPC is an offence for dishonestly receiving property stolen in a case of dacoity. Section 392 IPC for which the accused-appellants have been convicted in the present case provides for punishment of robbery. If in a separate trial, they have been treated accused for dishonestly receiving or retaining the stolen property in the commission of dacoity, their separate trial for offence under Section 392 IPC would be wholly impermissible. The prosecution in the present case chose not to get these two trials joined inasmuch as not to drop the prosecution of the accused for offence under Section 412 IPC with a view to proceeding against them for offence under Section 392 IPC or for that matter Section 396 IPC, of which charge they have been acquitted. The accused have rather been convicted only for offence under Section 392 IPC and also separately for offence under Section 302 IPC. The accused have rather been convicted only for offence under Section 392 IPC and also separately for offence under Section 302 IPC. This court can take judicial cognizance of the judgment dated 03.06.2011 passed by the Additional Sessions Judge No. 2, Deeg, District Bharatpur in Sessions Case No. 29/2010 (08/2011), (certified copy of which has been produced), in which the accused-appellants, namely, Afsar, Kala and Liyakat have been convicted for offence under Section 412 IPC and Section 3/25 of the Arms Act, where against their Criminal Appeals No. 529/2011 and 555/2011 is pending before this court. Therefore, the accused-appellants could not have been convicted for offence under Section 392 IPC. 20. Analysis of the evidence aforesaid even otherwise shows that chain of circumstances sought to be proved by the prosecution against the accused has several missing links and does not rule out every single hypothesis, which may be compatible with their innocence. In other words, the circumstantial evidence against the accused-appellants does not unerringly points towards them that it must be they alone and none else, who could have committed murder of Nasiruddin. This entitles them to benefit of doubt. 21. All the three criminal appeals therefore succeed and are allowed. The impugned judgment and order dated 01.07.2014 passed by learned Additional Sessions Judge, Tijara (Alwar) in Sessions Case No. 50/2012, is set aside. The accused-appellants are acquitted of the charge for offence under Sections 392 and 302 IPC. They be set at liberty forthwith, if not required to be detained in any other case. 22. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellants, namely, Liyakat S/o Fattu (Criminal Appeal No. 868/2014), Kala @ Kallu @ Shesham S/o Chote Khan (Criminal Appeal No. 1016/2014) and Afsar @ Afsa S/o Rahman (Criminal Appeal No. 344/2016) are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, with an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court.