JUDGMENT G.R. Moolchandani, J. - Court of Additional Sessions Judge No. 1, Kota tried six accused persons namely Banwari Lai son of Ramratan, Ramkaran and Bheru sons of Kalyan, Smt. Manbhar wife of Late Banwari Lal, Uda Lal son of Mangaram, Prabhu Lal son of Rodu, in Sessions Case No. 34/1985, arising out of FIR No. 29/1985, registered at Police Station Railway Colony, Kota, vide order impugned dated 29.6.1992, acquitted Bheru Lal and Ramkaran sons of Kalyan and Smt. Manbhar wife of Banwari for the offence punishable under section 392/120B of IPC and convicted accused-appellant Uda Lal son of Mangaram Meena and Prabhu Lal son of Rodu for the offence punishable under section 302 read with section 34 of IPC and sentenced both of them by an order of even date to undergo life imprisonment for the offence under section 302/34 of IPC with a fine of Rs. 100, in default thereof further to undergo three months rigorous imprisonment. 2. Written Report Exhibit-P1, when translated in English, reads as under "To, Station Officer, Railway Colony, Kota It is submitted that our villager Kishan Gopal Meena was sleeping below Hanuman temple in a Chowk, during Navratra festivity, who has been killed in the night at about 3:00 to 4:00 AM by three unknown persons by sharp edged weapon, his dead body is lying there, body of Kishan Gopal is having injuries on his forehead, face and neck and it is lying in a pool of blood, on alarm of labour, I got awakened and went there, people informed that deceased was killed by three persons, who fled away towards Gagayene, I have been sent for information and report, which is submitted. Sd/- Applicant Radheshyam Yadav s/o Ganesh Lal Yadav Village Gaudi 23.3.1985." 3. On basis of this Written Report formal FIR No. 29/1985 was lodged at Police Station Railway Colony, Kota, for the offences under section 302/34 of IPC on 23.3.1985 at 6:15 AM, which is Exhibit-P36. 4. Post mortem report Exhibit - P19 dated 23.3.1985 depicts that the same has been prepared at 11:30 AM and eight injuries and noted to have been found on the body of deceased cause of death due to hemorrhagic shock as a result of multiple incised wound. 5. Perusal of evidence goes to show that P.W.12 Dr. 4. Post mortem report Exhibit - P19 dated 23.3.1985 depicts that the same has been prepared at 11:30 AM and eight injuries and noted to have been found on the body of deceased cause of death due to hemorrhagic shock as a result of multiple incised wound. 5. Perusal of evidence goes to show that P.W.12 Dr. C.M. Srivastava has accepted to have conducted post mortem and drawing of autopsy report Exhibit-P19, contents of this document has been admitted by the defence, subject to cross examination and in cross a solo question has been asked, which is replied that deceased would have taken meal two hours before the death. 6. Contents of FIR positively discloses that the the prosecution is based on circumstantial evidence and there is no direct evidence since Written Report Exhibit-P1 and FIR Exhibit-P36 are lodged against unnamed persons. 7. Now we deal with other evidence and deposition produced by the prosecution. 8. P.W.1 Radheshyam son of Ganesh Ram has said that the occurrence belongs to 10 to 11 months back, he was sleeping in his residence, which is adjacent to Hanuman temple, labour was camping there near the temple, at 3 to 4 in midnight, people raised screams and shrieks were heard out on their noise he went out, labour informed that unknown person had killed a man, he found a dead body there, which was of his villager Kishan Gopal, it was having injuries and it was brutal murder, labour people did not inform as to who killed Kishan Gopal, then they went to Sarpanch Radheshyam Sharma and conveyed his unpleasant, then villagers sent him to lodge report with police, Exhibit-P1 is in his hand writing, which contains his signatures, he has further stated that he is not aware regarding animosity between deceased and Banwari pertaining to land nor the labour people informed him about the number of persons involved in the crime. 9. 9. P.W.2 Radhe Shyam son of Kanhaiyalal has also stated that he had seen a person dead near Hanuman temple, body of deceased Kishan Gopal was having injuries and he was lying dead, it is not known as to who killed him, he has accepted his signatures on spot-map Exhibit-P2 and panchnama Exhibit-P3, soil sample Exhibit-P4 and has stated that a little far from the place of incident, near the quarter of Gopi Lai Meena, remnant of Biri were found, he has also said that police had taken foot moulds vide Exhibit-P6, which contains his signatures, he has further stated that no recovery was made before him from the possession of Prabhu Lal and Uda Lal, a sword was recovered at the instance of Banwari, he has also said that he does not know as to who killed Kishan Gopal, in crossexamination, he has stated that the sword, which was recovered at the instance of Banwari was lying in the bushes and was visible and has stated that Latths and Sariya were there in the hands of accused persons, when they were sitting in the police vehicle and photograph of place from where foot-moulds were lifted, were not taken, he has also stated that a compromise was arrived at between Prema and Kishan Gopal before Panchayat, he has further stated that deceased Kishan Gopal was known to him, he was an accused in a dacoity case, 3 to 4 other cases were also there against him. Deposition of this witness demolishes theory of recovery because he has said that no recovery was made before him from the possession of Prabhu Lal and Uda Lal, so far as recovery of sword on the information of Banwari is concerned, the same is stated to have been effected from an accessible open place, which is of no worth. 10. P.W.3 Mohan Lal son of Gangabishan has turned hostile. 10. P.W.3 Mohan Lal son of Gangabishan has turned hostile. PW4 Kanchan Bai, wife of deceased, has said that 11 months back in the month of Chaitra her husband was killed, he was performing Navratra at Hanuman temple, he used to stay at mandir during Navratra, Banwari is real brother of her husband and Ramratan is her father-in-law, eight bigha land was obtained by her husband pertaining to her share from her father-in-law, Banwari had asked his share from this eight bigha land, her husband asked him to pay the share of expenditure, Banwari did not pay the same. She further deposed that due to land dispute, six months back Banwari had stated that he will kill her husband, so, she formulated the view that Banwari may have killed her husband, in cross examination, she stated that her husband was convicted 7 to 8 years ago in a case of dacoity and he was acquitted under appeal, she also testified that the fact relating to threat of killing, which was given six months back is not specified in Exhibit-P1, she has discarded certain utterances pertaining her police statement Exhibit-D1. She also stated that two years before the death of her husband, his son was adopted by Ganga Bai and she had given her land in his name. She also deposed that Panchayat had resolved dispute between Banwari and her husband, after that there was no discontent but they were not on talking terms. Nothing material has emerged from the testimony of this witness as well. 11. P.W.5 Ganesh Lal admitted his presence in the panchayat meeting held to resolve the dispute. This witness, has also turned hostile and has discarded several vitals of his police statement Exhibit-P12. 12. P.W.6 Chitar Lal also also stated that he is unaware as to who killed Kishan Gopal. He stated that deceased Kishan Gopal had come to him about one and half to two months ahead of killing with an intention to sell his four bigha land and had accepted agreement Exhibit-P15. 13. P.W.7 Mohan Lal son of Manna Lal stated that Banwari, accused, and deceased Kishan Gopal are known to him, both are brothers, Kishan Gopal has since died. 13. P.W.7 Mohan Lal son of Manna Lal stated that Banwari, accused, and deceased Kishan Gopal are known to him, both are brothers, Kishan Gopal has since died. He also deposed that how he died is not known to him, he had seen dead body with injuries and said that two persons had passed in-front of his house in the evening at about 3:00 to 4:00, none was the along with them, Banwari was not accompanying them, in crossexamination he has stated that Exhibit-P14 was not read over to him and that after arrest accused persons were shown to him in police station and they were also exposed prior to their test identification parade. Testimony of this witness demolishes the theory of test identification parade and diminishes evidentiary value of test identification parade to a naught. 14. P.W.8 Sanwaliya, P.W.9 Sheoji and P.W.10 Kalu have turned hostile ancon they have not supported the case of the prosecution. 15. P.W.11 Nemichand Jain, a Magistrate, before whom test identification parade has taken place, has confirmed Exhibit-P14, in cross examination, he has also accepted that both the accused persons had informed that policemen had shown them to the witnesses before their identification 15 parade, which is mentioned in column no. 10, it also mars the worth of the parade. 16. P.W.12 Dr. C.M. Srivastava had conducted autopsy on the body o deceased Kishan Gopal on 23.3.1985 vide Exhibit-P19. 17. P.W.13 Om Prakash as stated that Banwari used to buy been beeri from his shop. P.W.14 Janki Lai stated that one day ahead of demise of Kishar Gopal, he had seen two persons on the road and had identified them, he has accepted his signatures on Exhibit-P14, in cross-examination, he has also a said that he had not talked with those two persons. 18. P.W.15 Ramnarain has stated that Kishan Gopal and Banwari were brothers, both have died and he does not known as to how Kishan Gopal died, this witness has also turned hostile. 19. PW16 Ram Singh, SHO, has stated that he had verified fact of visiting Manbhar to her parental home. 20. P.W.17 Ramesh Chand is a Police Constable, at relevant time he was Malkhana Incharge and had given seven packets to Ranjeet Singh and Hazari Lal for depositing the same in FSL, which were deposited and receipt Exhibits-P21 and P22 were submitted. 21. 20. P.W.17 Ramesh Chand is a Police Constable, at relevant time he was Malkhana Incharge and had given seven packets to Ranjeet Singh and Hazari Lal for depositing the same in FSL, which were deposited and receipt Exhibits-P21 and P22 were submitted. 21. P.W.18 Moti Lal is a witness of resolution having been taken place before the Panchayat, which had earlier resolved the dispute between Kishan Gopal and his other brothers and family members. 22. P.W.19 Ganga, wife of Ramkumar, stated that she was living with Ramkumar after demise of her husband Jagannath, she has further stated that she did not adopt Mahaveer. Kishan Gopal had asked her to give her property in favour of his son, in crossexamination, she has stated that Kishan Gopal had brought and taken him to the Court and got her thumb impressions on blank papers, after demise of Jagannath, she performed marriage with Ramkumar and never visited at places suggested. Testimony of this witness goes to reveal that Kishan Gopal, deceased, was a person of dubious character since he had got his son shown to be an adopted son of Ganga and got her property muted in his son''s name and Ganga has categorically stated that she was beguiled by Kishan Gopal and she never adopted son of Kishan Gopal. 23. P.W.20 Kailash Chand has also turned hostile and has not supported the prosecution. P.W.21 Hazari Lal is a Police Constable, who deposited samples vide Exhibits-P21 and P22. 24. P.W.22 Jagannath, son of Gopi Lal, is an attesting witness to Exhibits-P8, P9 and P10 respectively. In cross-examination (P.W.22) admitted that police had taken his signatures on certain papers, his statements were not recorded nor they were read over to him, except policemen, he did not see anybody else at the said place. He has said that he cannot say about anybody else''s signatures on Exhibit-P8, which makes the recovery doubtful and testimony of this witness being of no worth because recovery memo contains signatures of more than one individual and this witness has denied having witnessed any recovery. 25. He has said that he cannot say about anybody else''s signatures on Exhibit-P8, which makes the recovery doubtful and testimony of this witness being of no worth because recovery memo contains signatures of more than one individual and this witness has denied having witnessed any recovery. 25. P.W.23 Ranjeet Singh, Constable, is also a sample depositing witness, who has stated that he had deposited the samples in FSL vide receipt Exhibit-P21, this witness has further stated that he had gone on 15.4.1985 to FSL and had returned with the sample under objection and has said that he had returned these samples with objection to Head Constable later. 26. PW24 Abdul Gaffar had stated that on 23.3.1985 he was posted in SP Office in MOB Branch and had taken twenty-one foot moulds vide Exhibit-P6 which were given to SHO, Railway Colony, for matching, in cross-examination, he has Stated that his statements were not recorded by thanedar and the place from where moulds were taken was a public passage and several foot prints were there and has stated that he would have taken foot-moulds of distinct singular foot. Admittedly, the alleged specimen sample of foot moulds have not been taken in presence of a Judicial Magistrate, in absence of which, obtainment of foot moulds and its legal worth become worthless. 27. P.W.25 Ramchandra, Head Constable, has stated that on 23.3.1985, he was posted at Kota with SP Office as a Head Constable and had taken foot-prints of three persons vide Exhibit-P6. 28. P.W.24 Abdul Gaffar has stated that there were several foot prints and he had taken foot moulds of distinct singular foot and had not quantified about the number of persons whose foot moulds would have been taken, whereas P.W.25 Ramchandra, a Head Constable, has stated that foot moulds of three persons were taken, which makes testimony pertaining to obtainment of foot moulds doubtful and fragile, he has also stated that he was accompanied by thanedar sahab, one Constable and two Cops were already there, which goes to show that no independent witness or an authority before whom the foot moulds would have been taken, was present there. It is an admitted position that specimen foot moulds of accused have not been taken before a Magistrate. P.W.24 Abdul Gaffar has said that twenty-one moulds were taken, whereas this witness (P.W.25) has stated that six foot moulds were taken by him. 29. It is an admitted position that specimen foot moulds of accused have not been taken before a Magistrate. P.W.24 Abdul Gaffar has said that twenty-one moulds were taken, whereas this witness (P.W.25) has stated that six foot moulds were taken by him. 29. P.W.26 Punjraj Singh Bhati, DySP, deposited about various facets of investigation undertaken by this witness and has stated that on 24.3.1985 he had assigned investigation to SHO, Police Station, Railway Colony, in cross-examination, he has admitted that the accused persons were not nominated in FIR and the accused persons were named after interrogation from Manbhar, wife of Banwari and with other witnesses of the village. 30. P.W.27 Abdul Khalil, Sub-Inspector, has narrated partial aspects of investigation. PW28 Chawar Singh, SHO has stated that Exhibit-P1 Written Report was presented before him and he had made endorsment over it, he has further stated that foot-prints were taken from the place of occurrence vide Exhibit-P6 through Ramchandra, In-charge MOB Branch Kota and has narrated about the process of investigation under taken by this witness partially, he has further stated that the place of recovery of weapons was an open place and accessible to everybody. 31. Upon considering afore-discussed evidence produced by the prosecution, nothing is there to reveal that prosecution has succeeded in establishing its case, the circumstances are not well in league and they are not connected to prove the case, it is an admitted position that the specimen foot-prints of accused have not been taken before a Magistrate, so, their evidentiary significance is devoid of worth, assumptions and conjectures can not take place of a proven fact or nor they can be termed as grounds for conviction, no evidence pertaining to ''last seen together'' is there, deceased was found with lethal injuries dead near Hanuman temple, none was there to witness the incident nor such evidence is there. 32. 32. In Padala Veera Reddy vs. State of Andhra Pradesh, 1989 Supp.(2) SCC 706, the Supreme Court has observed that in matters of circumstantial evidence, the evidence must satisfy the following texts:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 33. In Varun Choudhary vs. State of Rajasthan, 2011 Cri. L.J. 675 , it has been held that where chain of events is doubtful, no conviction can be based and it is settled legal propositon that in a case of circumstantial evidence there must be complete chain of events which would lead to conclusion that the accused was the only person, who could have committed that offence and none else. In Musheer Khan alias Badsah Khan vs. State of Madhya Pradesh, 2010 (2) SCC 748 it has been observed that in cases of circumstantial evidence complete chain of circumstances must be looked and snapped or scattered links are not sufficient to convict the accused and in Sanatan Naskar vs. State of West Bengal, 2010 (3) RCR (Criminal) 629 page (S.C.) it has been held that court below took a wrong view of the matter while convicting the accused in a case, where chain of events of the case was not proved beyond reasonable doubt and in the case of Jiten Besra vs. State of West Bengal 2010 (2) SCC (Cr.) 438 , and in Kamla Devi vs. State of Delhi, 2012 (2) J.C.C 1457 (Delhi) , the Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get the benefit of doubt. 34. In a receipt law as laid down in H.D. Sikand (D) Thro''s Lrs. 34. In a receipt law as laid down in H.D. Sikand (D) Thro''s Lrs. vs. Central Bureau of Investigation & Anr., 2017 Cr. L.R. (SC) 58 the Supreme Court has held that if the offence is not established and the prosecution fails to prove the offence beyond reasonable doubt, then order of acquittal is justified. 35. In Narendra Singh & Anr. vs. State of Madhya Pradesh, 2004 (10) SCC 699 the Apex Court has recognised presumption of innocence as a human right and has gone on to say that: 30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof, it is equally well settled that there is a long distance between ''may be'' and ''must be''. 36. In Baijnath & Ors. vs. State of Madhya Pradesh, 2017 (1) SCC 101 , the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged. 37. Nothing positive is there in entire evidence of the prosecution to connect the accused persons with crime and chain of circumstances is also not complete to fasten criminal culpability. Learned trial Court has already acquitted four accused persons out of six who were tried. We find that learned trial Court fell in error in passing the judgment impugned, while convicting and sentencing both the accused appellants Uda Lal and Prabhu Lal and impugned findings of learned trial Court are not sustainable. 38. Therefore, instant appeal is allowed and finding of learned trial Court, convicting and sentencing both the accused persons for the offence under section 302/34 of IPC, is set aside. 39. Accused appellants are already on bail, so they need not to surrender, their personal bond and security bonds are discharged. However, the accused appellants are directed to comply with the provisions of section 437A of Cr.P.C., 1973 40. Let record of the learned trial Court be sent back expeditiously with a copy of the judgment. Learned trial Court is also directed to ensure compliance of section 437A of Cr.P.C., 1973 Appeal allowed - Accused to comply with provision of section 437A of Cr.P.C., 1973