JUDGMENT : Mr. Kanwaljit Singh Ahluwalia, J. 1. Shankar Lal on 21.1.2011, at about 8:00 PM, left his house situated at village Khadka, District Dausa. He had not returned home, therefore, his brother Muthresh (P.W.5) on 22.1.2011, lodged missing report (Exhibit-P/6) at Police Station, Kolwa. In the missing report, it was stated that on 21.1.2011, at about 8:00, brother Shankar Lal had gone to the field of Bhomaram (P.W.11) to irrigate wheat crop from the well. It was stated that the field of Bhomaram was cultivated by Shankar Lal on the basis of Batai (share basis). The complainant had learnt that his brother had not reached at the well. The said information was relayed by the neighbours. They searched for him. It was further stated in the missing report that Shankar Lal was carrying a Mobile No. 9928747223 and upon call made, the phone was switched off. In the missing report suspicion was not raised against anybody. 2. On the next day, i.e. on 23.1.2011, Ladbai (P.W.7), sister of the deceased found dead body of Shankar Lal near Rajasthan Sr. Sec. School, Kundal. Resultantly, Muthresh (P.W.5) presented written report (Exhibit-P/11) before S.I. Devi Sahay (P.W.24). 3. In the written report (Exhibit-P/11), the complainant stated that his brother Shankar Lal on 21.1.2011 at about 8:30 PM had gone to irrigate the field taken by him on Batai. On 22.1.2011, in the morning at about 8:00 – 9:00 AM, Mamta wife of Shankar Lal had gone to see him at the field, where Bhomaram owner of the field informed that Shankar Lal had not come in the night to irrigate the field. Bhomaram and Mamta arrived at the house of the complainant. Thereafter, they searched for Shankar Lal in the relations and telephonic calls were also made to acquaintance but no whereabouts of Shankar Lal were known. On 23.1.2011 at about 6:00 PM, sister Ladbai had gone to fetch milk and she found dead body of Shankar Lal near wall of Rajasthan Sr. Sec. School Kundal. The complainant along with family members had gone to the spot. Police also arrived at the spot. 4. In the written report, the complainant raised suspicion against eleven persons, namely Arjun Lal, Mahesh, Kamlesh, Pawan, Ravi son of Arjun and Laxman @ Lattu resident of Khori Khurd, Dashrath Singh Rajput, Ramniwas, Surjan son of Gangadhar, Sampat son of Ramniwas, Rajendra son of Surjan. Police also arrived at the spot. 4. In the written report, the complainant raised suspicion against eleven persons, namely Arjun Lal, Mahesh, Kamlesh, Pawan, Ravi son of Arjun and Laxman @ Lattu resident of Khori Khurd, Dashrath Singh Rajput, Ramniwas, Surjan son of Gangadhar, Sampat son of Ramniwas, Rajendra son of Surjan. It was stated in the written report that from the last 8 to 9 months, they were having dispute over the land and on 19.1.2011, Arjun Lal had left a threat that he will not leave Shankar Lal alive. 5. We many notice here that in the missing report (Exhibit-P/6), it was specifically stated that the complainant party has no suspicion against anybody, whereas, in the written report (Exhibit-P/11), needle of suspicion was raised towards Arjun Lal. 6. The dead body was sent for post mortem. Dr. Satish Khandelwal (P.W.21), conducted autopsy on the dead body of Shankar Lal. In the Post Mortem Report (Exhibit-P/34), a ligature mark was found around the neck of deceased. Viscera was sent to FSL. As per Post Mortem Report (Exhibit-P/34), the cause of death was Asphyxia due to strangulation. Dr. Satish Khandelwal (P.W.21) relying upon the report of FSL (Exhibit-P/35), opined that no poison was found in the viscera of the deceased, hence, it was not a case of poison. Dr. Satish Khandelwal (P.W.21) further opined that poison was found on the clothes of the deceased, hence, it cannot be ruled out that an attempt was made to project that the deceased had consumed poison. After the report of Post Mortem, it stood proved that it was a case of homicidal death. 7. In the present case, on the basis of written report (Exhibit-P/11), a formal FIR bearing No.14/2011 was registered at Police Station Kolwa, District Dausa. During investigation, Arjun Lal son of Shri Gangadhar, Hanuman son of Prabhu Dayal and Smt. Savitri Devi wife of Khairati Lal were nominated as accused. The report of investigation was submitted in the court of concerned Magistrate. The said court committed the report of investigation along with the accused for trial to the court of Sessions. The accused were tried by the court of Sessions Judge, SC/ST (Prevention of Atrocities) Cases Act, Dausa. The report of investigation was submitted in the court of concerned Magistrate. The said court committed the report of investigation along with the accused for trial to the court of Sessions. The accused were tried by the court of Sessions Judge, SC/ST (Prevention of Atrocities) Cases Act, Dausa. The said court vide impugned judgment dated 23.1.2015, convicted Arjun Lal son of Shri Gangadhar, Hanuman son of Prabhu Dayal and Smt. Savitri Devi wife of Khairati Lal, for the offences under Sections 302, 364, 201 and 120-B IPC. 8. Having convicted the accused appellants for the above said offences, the trial Judge vide a separate order of even date, sentenced the appellants as under:- U/s.302 IPC-to undergo life imprisoment and to pay a fine of Rs.10,000/- each, in default of payment of fine, to further undergo nine months R.I. U/s.364 IPC-to undergo ten years R.I. and to pay a fine of Rs.7,000/- each, in default of payment of fine, to further undergo six months R.I. U/s.201 IPC-to undergo five years R.I. and to pay a fine of Rs.4,000/- each, in default of payment of fine, to further undergo three months R.I. U/s.120-B IPC-to undergo seven years R.I. and to pay a fine of Rs.5,000/- each, in default of payment of fine, to further undergo four months R.I. All the sentences were ordered to run concurrently. 9. However, the appellants were acquitted of the offence under Section 3(2)(5) of SC/ST (Prevention of Atrocities), Act. 10. Aggrieved against their conviction and sentence, accused Hanuman filed D.B. Criminal Appeal No. 171/2015, Smt. Savitri Devi instituted D.B. Criminal Appeal No. 172/2015, another appeal bearing D.B. Criminal Appeal No. 173/2015 was also filed on behalf of Smt. Savitri Devi, whereas, Arjun Lal preferred D.B. Criminal Appeal No. 241/2015. Since on behalf of Smt. Savitri Devi, two separate appeals have been filed, we club both the appeals together. Since in all the four appeals, preferred on behalf of three accused appellants, impugned judgment dated 23.1.2015 along with the order of sentence of even date, has been assailed, we shall decide all the appeals together. 11. The prosecution to secure conviction of the appellants, has relied upon the circumstantial evidence. There is no direct evidence available with the prosecution. The circumstances on the basis of which, conviction has been secured, the same can be enumerated as under:- A. Recoveries from the accused. 11. The prosecution to secure conviction of the appellants, has relied upon the circumstantial evidence. There is no direct evidence available with the prosecution. The circumstances on the basis of which, conviction has been secured, the same can be enumerated as under:- A. Recoveries from the accused. (i) As per prosecution, Arjun Lal, accused on 4.2.2011 suffered disclosure statement (Exhibit-P/43) and informed the investigating agency that he had kept concealed in his house, one mobile phone belonging to deceased Shankar Lal and a Tata Scorpio vehicle which was used for transporting the dead body to school, situated at village Kundal. In pursuance of the disclosure statement (Exhibit-P/43), investigating agency recovered one mobile (Nokia 1204) vide memo Exhibit-P/8 from the house of accused. Memo Exhibit-P/8 regarding recovery of mobile (Nokia 1204) was attested by Mukesh Kumar (P.W.6) and Ramawatar (P.W.9). Tata Scorpio vehicle was recovered on the same day i.e. on 4.2.2011 vide memo Exhibit-P/15. The said memo was also attested by Mukesh Kumar (P.W.6) and Ramawatar (P.W.9). (ii) Smt. Savitri Devi accused suffered another disclosure statement (Exhibit-P/42) stating therein that she had kept concealed one axe, torch and rope, used for strangulation, in her house and she can get the same recovered. In pursuance of Exhibit-P/42, vide recovery memo Exhibit-P/7, axe belonging to deceased and rope were recovered from the house of Smt. Savitri Devi. This memo Exhibit-P/7, was attested by Mukesh Kumar (P.W.6) and Ramavtar (P.W.9). (iii) The accused appellant Hanuman, as per investigating agency on 4.2.2011 suffered disclosure statement under Section 27 of the Indian Evidence Act to the effect that he had kept concealed Kisan torch belonging to deceased in his house. In pursuance of the disclosure statement (Exhibit-P/44), vide recovery memo Exhibit-P/9, the said torch was recovered from the house of accused Hanuman in presence of Mukesh Kumar (P.W.6) and Ramavtar (P.W.9). B. Evidence of call details between three accused and deceased. C. Recovery of Suicide Note (Exhibit-P/10) from the pocket of shirt of deceased, at the time of post mortem. The case of the prosecution is that the suicide note was written by accused Hanuman to mislead the investigating agency by projecting case of murder to be a case of suicide. In support of this, the prosecution has relied upon the report of FSL (Exhibit-P/58). D. Motive. The case of the prosecution is that the suicide note was written by accused Hanuman to mislead the investigating agency by projecting case of murder to be a case of suicide. In support of this, the prosecution has relied upon the report of FSL (Exhibit-P/58). D. Motive. The evidence of motive has emerged in the testimony of Balu Ram (P.W.2) father of the deceased, Mamta (P.W.4) wife of the deceased, Muthresh (P.W.5) brother of the deceased, Ladbai (P.W.7) and Manbhari (P.W.8) sister and mother of the deceased, respectively. 12. Bhomaram (P.W.11), who had given his field on Batai to the deceased Shankar Lal has not supported the prosecution case and he has turned hostile to the prosecution. 13. Now, we shall deal with each circumstance to find whether prosecution has been able to complete chain of circumstances to prove guilt on the part of the accused. A(i). Recovery from accused appellant Arjun Lal: 14. The case of the prosecution is that Arjun Lal made a disclosure statement (Exhibit-P/43) and got recovered mobile (Nokia 1204) belonging to deceased Shankar Lal from his house along with Tata Scorpio vehicle used to transport the dead body of Shankar Lal to the school, from where it was found. 15. So far recovery of Tata Scorpio vehicle is concerned, it is undeniable fact that same belongs to the accused and on the date of incident, it was lying parked in the house of accused Arjun Lal. The trial court by giving very apt reasons has not relied upon the recovery of Tata Scorpio vehicle, as an incriminating circumstance. 15. So far recovery of Tata Scorpio vehicle is concerned, it is undeniable fact that same belongs to the accused and on the date of incident, it was lying parked in the house of accused Arjun Lal. The trial court by giving very apt reasons has not relied upon the recovery of Tata Scorpio vehicle, as an incriminating circumstance. We reproduce Para 49 of the judgment rendered by the trial court, as under:- ^^tgka rd vfHk;qDr vtqZu yky ls VkVk Lisf’k;ksa xkM+h ua0 vkj0ts0 29 ;w0,0 0996 dh cjkenxh ds vk/kkj ij mldks bl izdj.k dh ?kVuk ls tksMs+ tkus dk iz’u gS] QnZ cjkenxh izn’kZ ih0 15 ds vuqlkj ;g xkM+h vfHk;qDr ds edku ds lkeus ds ukSgjs esa ls [kM+h dks fnukad 04-02-2011 dks tCr fd;k x;k gS vkSj blds }kjk e`rd ‘kadj yky dh yk’k dks lkfo=h nsoh ds ?kj ls Ldwy ds ikl Mkyus dh txg rd ysdj tkuk QnZ cjkenxh izn’kZ ih0 15 esa o vfHk;qDr }kjk nh xbZ lwpuk izn’kZ ih0 43 esa vafdr fd;k x;k gS] ysfdu bl xkM+h o ?kVukLFky ij tgka ij e`rd ‘kaadj yky dh yk’k cjken gqbZ Fkh] esa bl ckcr~ dksbZ vkykekr gksa] ,slh dksbZ Li”V lk{; vfHk;kstu }kjk ijhf{kr djok, x, lkf{k;ksa dh ugha gSA uD’kk ekSdk izn’kZih0 2 esa Hkh ,Dl0 LFkku tgkWa ij e`rd dh yk’k iM+h Fkh] ds vklikl bl xkM+h ds Vk;jksa ds dksbZ fu’kkukr gksa] ,slh Hkh dksbZ Li”V lk{; vfHk;kstu }kjk ijhf{kr djok, x, lkf{k;ksa dh ugha gSA tcfd ,slh cjkenxh dh fLFkfr esa ?kVukLFky ij Vk;jksa ds fu’kku gksuk lkfcr fd;k tkuk vkSj ?kVukLFky ls Vk;jksa ds fu’kku ys tkdj mldh rqyuk cjken VkVk Lisf’k;ksa xkM+h ds Vk;jksa ls fd;k tkuk vko’;d gS ysfdu ,slh dksbZ lk{; Hkh vfHk0 lk{kh&25 gsesUnz ‘kekZ vuqla/kku vf/kdkjh dh ugha gS] ftlls bl xkM+h dh cjkenxh dh ifjfLFkfr ds vk/kkj ij rks vfHk;qDr vtqZu yky dks vijk/kksa ls ugha tksM+k tk ldrk gSA^^ 16. We are in agreement with the reasoning propounded by the trial court. We also find that except disclosure statement, which is not attested by anybody, there is nothing on record to corroborate the disclosure that the vehicle owned by the accused appellant was used to transport the dead body and no stain of blood has been found in the vehicle. 17. We may notice here that the disclosure statement (Exhibit-P/43), is not attested by any witness. 18. 17. We may notice here that the disclosure statement (Exhibit-P/43), is not attested by any witness. 18. Relying upon the judgment of 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.” 19. So far recovery of mobile (Nokia 1204) is concerned, no identification proceedings qua mobile were carried by the prosecution. NO bill or memo has been produced to say that the mobile phone bearing IMEI number belonged to deceased Shankar Lal. Even no witness from the service provider has been examined to say that the Sim or phone connection in the name of Shankar Lal was used in the mobile recovered from the accused appellant Arjun Lal. 20. Muthresh (P.W.5) in the court stated that mobile was recovered from the Almirah of accused Arjun Lal beneath the clothes. Even no witness from the service provider has been examined to say that the Sim or phone connection in the name of Shankar Lal was used in the mobile recovered from the accused appellant Arjun Lal. 20. Muthresh (P.W.5) in the court stated that mobile was recovered from the Almirah of accused Arjun Lal beneath the clothes. Muthresh (P.W.5) in the court stated that at the time of recovery of mobile along with him, Mahendra (P.W.3), Mukesh (P.W.6) son of his uncle (Chacha), Raj Kumar (P.W.1) and Ramavtar (P.W.9) son of his maternal aunt (Mausi) were present with police. We reproduce the following portion from the testimony of Muthresh (P.W.5) as under:- ^^vtqZuyky ds ?kj ls eksckbZy djhc 3&4 fnu ckn cjken fd;k Fkk ‘kadjyky dh yk’k feyus ls 3&4 fnu ckn eksckbZy cjkenxh ds le; iqfyl ds lkFk eSa] esjs pkpk dk yM+dk egsUnz] eqds’k] jktdqekj o jkeorkj x;s FksA eqds’k esjs pkpk dk yM+dk gS vkSj jkekorkj esjh ekSlh dk yM+dk gSA cjken’kqnk eksckbZy tSls eksckbZy cktkj esa [kwc feyrs gSa ‘kadj Hkh cktkj ls [kjhndj yk;k FkkA eq>s eksckbZy ds uEcj /;ku gS mlds bZ0,e0vkbZ0 uEcj ;kn ugha gSA esjs HkkbZ us eksckbZy dc [kjhnk Fkk ;g /;ku ugha gSA cjkenxh ds le; ml eksckbZy ls Fkkusnkj th us dgha ckr ugha dhA eSaus Fkkusnkj th dks eksckbZy ds uEcj ds crk fn, FksA^^ 21. Thus, it has come in evidence that two witnesses to the recovery memos, namely Mukesh (P.W.6) and Ramavtar (P.W.9) are closely related with the family of deceased Shankar Lal, as Mukesh (P.W.6) is son of uncle (Chacha) and Ramavtar (P.W.9) is son of maternal aunt (Mausi). 22. In cross-examination Mukesh (P.W.6) admitted that similar phones manufactured by Nokia company are available in the market and he is not aware of the number of the mobile set. We reproduce the following portion from the cross-examination of Mukesh (P.W.6) as under:- ^^eksckbZy dk lsV uEcj D;k Fkk eq>s irk ugha ysfdu eksckbZy uksfd;k daiuh dk FkkA ;g lgh gS fd ,sls uksfd;k Qksu cktkj esa [kwc feyrs gSA^^ 23. We reproduce the following portion from the cross-examination of Mukesh (P.W.6) as under:- ^^eksckbZy dk lsV uEcj D;k Fkk eq>s irk ugha ysfdu eksckbZy uksfd;k daiuh dk FkkA ;g lgh gS fd ,sls uksfd;k Qksu cktkj esa [kwc feyrs gSA^^ 23. In the light of the gains made by the defence, from the testimony of the witnesses, it is apparent that the prosecution has failed to prove that mobile purportedly recovered from Arjun Lal appellant was of the deceased Shankar Lal, especially when investigating officer has admitted that in his investigation it never surfaced that the mobile phone recovered from the Arjun Lal accused-appellant was of deceased. We reproduce a following portion from the testimony of Hemendra Sharma (P.W.25), the investigating officer as under:- ^^QnZ cjkenxh iz0ih0 8 ls ftl eksckbZy dks tCr fd;k x;k gS mlds dksbZ bZ0,e0vkbZ0 uEcj o bULVesaV uEcj QnZ esa vafdr ugha gSA esjh rQ~rh’k esa iz0ih0 8 }kjk tCr’kqnk eksckbZy e`rd ‘kadjyky dk gks ,slh dksbZ nLrkost lk{; ugha vk;h dsoy ek= dkWy fMVsYl ds vk/kkj ij ;g rF; vk;k gS fd eksckbZy ‘kadjyky dk gSA pwWafd ekSds ifjoknh us eksckbZy dks igpkudj e`rd ‘kadjyky dk gksuk crk;k blfy, eSaus eksckbZy ds laca/k esa dksbZ dk;Zokgh f’kuk[rxh fd;k tkuk mfpr ugha le>kA^^ Investigating Officer as stated by him, had carried no identification proceedings. A. (ii) Recovery of axe and rope from the accused Smt. Savitri Devi: 24. The prosecution to connect Smt. Savitri Devi accused with the crime has relied upon recovery of axe of the deceased. Smt. Savitri Devi had made a disclosure statement (Exhibit-P/42). Thus, disclosure statement is not attested by any witness. It is the case of the prosecution that in pursuance to the disclosure statement (Exhibit-P/42) Smt. Savitri Devi vide memo (Exhibit-P/7) got recovered an axe and piece of rope. 25. Muthresh (P.W.5) in the court has stated that on 21.11.2011 at about 8.30.p.m., his brother Shankar Lal had left the house along with axe, mobile (Nokia 1204) and Kisan torch. It is the case of the prosecution that in pursuance to the disclosure statement (Exhibit-P/42) Smt. Savitri Devi vide memo (Exhibit-P/7) got recovered an axe and piece of rope. 25. Muthresh (P.W.5) in the court has stated that on 21.11.2011 at about 8.30.p.m., his brother Shankar Lal had left the house along with axe, mobile (Nokia 1204) and Kisan torch. We reproduce the following portion from the testimony of Mathuresh (P.W.5) as under:- ^^mlds ckn esa 21-01-2011 dks ‘kke% lk<+s vkB cts esjk HkkbZ ik.kr djus ds fy, x;k Fkk og lkFk esa ,d dqYgkM+h ysdj x;k Fkk] ,d eksckbZy uksfd;k 1209 ftlds ua0 gSa 9928747223 ,d fdlku VkWpZ ihys jax dh ysdj x;k Fkk mlds ckn esa Hkksekjke dksyh ds cV esa geus tehu dj j[kh Fkh ogka ik.kr djus x;k FkkA^^ 26. We may notice here that this fact that the deceased had left the house along with an axe, mobile phone and a Kisan torch is not mentioned in the missing report (Exhibit-P/6) and written report (Exhibit( P/11) submitted to police on 22.01.2011 and 23.01.2011 respectively. We find merit in the contention that these three articles were introduced by the investigating agency later and recoveries effected are padding to connect the accused with the crime. Muthresh (P.W.5) has admitted that there was no special identification mark on the axe and such axes are available in the market. We may notice here that no blood stain has been found on the axe recovered and, therefore, it cannot be ruled out that the axe recovered being an ordinary agricultural implement can also be available in the house of Smt. Savitri Devi. 27. We also do not accept the reasoning propounded by the trial Judge that Smt. Savitri Devi has not admitted in her statement recorded under Section 313 Code of Criminal Procedure, 1973 that axe belongs to her, or has not proved its ownership by producing any bill. Axe, like an ordinary agricultural implement, is ordinarily available in the house of an agriculturist. Similarly, rope has also not been shown to the doctor, who conducted autopsy to arrive at a conclusion that the ligature mark found on the dead body could be caused with the rope recovered. We may mention here that each rope has specific knots and same can be tallied by the expert with the ligature mark. Similarly, rope has also not been shown to the doctor, who conducted autopsy to arrive at a conclusion that the ligature mark found on the dead body could be caused with the rope recovered. We may mention here that each rope has specific knots and same can be tallied by the expert with the ligature mark. Therefore, we find that the prosecution has miserably failed to connect the axe recovered and rope as incriminating circumstance against the accused Smt. Savitri Devi. C. (i) Recovery of Kisan torch from the accused-appellant Hanuman: 28. So far as the recovery of Kisan torch on the basis of disclosure statement (Exhibit-P/44) made by Hanuman accused appellant and recovery memo Exhibit-P/9 are concerned, reasons given by us above to dis-believe recovery of mobile phone from Arjun Lal accused and axe and rope from accused appellant Smt. Savitri Devi also operate in favour of accused appellant Hanuman. Witnesses have admitted that torch of similar nature are available in the market in plenty. They have admitted that there is no special identification mark and no identification proceedings were carried by mixing the torch recovered with the numerous other torches of similar nature. Further, in the missing report (Exhibit-P/6) and written report (Exhibit-P/11) submitted to police on 22.01.2011 and 23.01.2011 respectively, it is nowhere, mentioned that deceased Shankar Lal had carried the torch. We may also state that the torch of similar nature are normally available in the house of a villager, especially when due to load shedding and scarcity of electricity, villagers face numerous power cuts. 29. Thus, taking totality of circumstances we find that recoveries effected from the accused appellants, in pursuance of respective disclosure statements and recovery memos cannot be relied. We may say here again that Mukesh (P.W.6) and Ramavtar (P.W.9) witnesses to recoveries, are close relatives of the deceased Shankar Lal and the disclosure statements have not been witnessed by anybody to arrive at a conclusion that accused made the disclosure statements without any duress or coercion. B. Evidence of call details between three accused and deceased: 30. Hemendra Sharma (P.W.25), the investigating officer deposed in the court that during investigation, he had obtained call details of five mobile numbers bearing Nos. 9950040839, 8003454453, 9928747223, 9928397007 and 9602999421. The call details obtained qua above five phone numbers have been proved on record as Exhibit-P/35 to Exhibit-P/39. B. Evidence of call details between three accused and deceased: 30. Hemendra Sharma (P.W.25), the investigating officer deposed in the court that during investigation, he had obtained call details of five mobile numbers bearing Nos. 9950040839, 8003454453, 9928747223, 9928397007 and 9602999421. The call details obtained qua above five phone numbers have been proved on record as Exhibit-P/35 to Exhibit-P/39. We reproduce the following portion from the examination-in-chief of investigating officer, as under:- ^^nkSjkus vuqla/kku eSaus eksckbZy ua0%& 9950040839] 8003464453] 9928747223] 9928397007] 9602999421 dh dkWy fMVsy izkIr dh FkhA ftudh vkbZ0Mh0 dze’k% lkfo=h nsoh] xkSjh’kadj] iou dqekj vkSj guqeku izlkn ds uke ls FkhA dkWy fMVsyl iz0ih0 35 yxk;r 39 gS ftu ij , ls ch esjs gLrk{kj gS mDr fMVsy esa eSaus ‘kkfey djus dk uksV vafdr fd;k FkkA^^ 31. In the present case, no official from the service provider or of a Telecom Company has been examined. We fail to comprehend as to how the trial court had assigned exhibits to the call details of above five numbers, as no witness had proved its authenticity and genuineness. Section 65 of Indian Evidence Act prescribes procedure regarding admissibility of telephonic records. 32. 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.” 33. In view of the above observations of Supreme Court, evidence of call details cannot be relied against the appellants and same is ruled out of consideration. C. Recovery of Suicide Note (Exhibit-P/10) from the pocket of shirt of deceased, at the time of post mortem: 34. The case of the prosecution is that at the time of post mortem, from the pocket of shirt of the deceased, suicide note (Exhibit-P/10) was recovered. Constable Dharma Yadav (P.W.10), has stated that in the mortuary of Government Hospital, Dausa, from the pocket of shirt of deceased, suicide note was taken into possession vide memo Exhibit-P/10. To similar effect is the statement made by Constable Bhim Singh (P.W.15). 35. On 23.1.2011 at about 9:35 AM, memo Exhibit-P/10, regarding taking into possession of suicide note was prepared. However, we find that the Inquest/Panchayatnama of dead body (Exhibit-P/1) was also prepared at the spot on 23.1.2011. The Inquest was prepared at the mortuary. To similar effect is the statement made by Constable Bhim Singh (P.W.15). 35. On 23.1.2011 at about 9:35 AM, memo Exhibit-P/10, regarding taking into possession of suicide note was prepared. However, we find that the Inquest/Panchayatnama of dead body (Exhibit-P/1) was also prepared at the spot on 23.1.2011. The Inquest was prepared at the mortuary. Raj Kumar (P.W.1) attesting witness to the inquest, in the court stated that the Police and doctor while preparing the inquest had removed the clothes of the deceased. This witness in the court stated as under:- ^^iqfyl us] MkWDVj us iapukek cukrs oDr e`rd ds diM+s mrkj dj cksMh dks ns[kk FkkA diM+s iqfyl ds ikl lqiqnZxh esa jgsA^^ 36. We find that inquest is totally silent regarding recovery of suicide note. 37. Mahendra Kumar (P.W.3) another witness to the inquest (Exhibit-P/1) in cross-examination stated as under:- ^^yk’k tc eSaus ns[kh rks mlus diM+s igu j[ks FksA yk’k ds diM+s iqfyl }kjk esjs lkeus gh mrkjs x;s FksA yk’k dh isaV dh tsc ls :i;s] dksbZ i’kZ oxsjgk ugha feysA isaV] ‘kVZ dh tsc ls dksbZ pht] :i;s o ilZ oxSjgk ugha feysA^^ 38. Thus, in the present case, all the witnesses to inquest have specifically deposed that nothing was recovered from clothes of the deceased what to say of suicide note, curiously enough witnesses to the recovery of suicide note are not independent witnesses but are two constables, namely Dharma Yadav (P.W.10) and Bhim Singh (P.W.15). Furthermore, specimen handwriting of accused Hanuman were not obtained in the presence of any Magistrate. 39. Hemendra Sharma (P.W.25) Investigating Officer in the court has deposed that specimen handwriting of accused Hanuman was obtained in presence of Circle Officer, Bandikui. This witness further stated Circle Officer was a gazetted officer. However, who was that Circle Officer, no details have been given. Undeniably Circle Officer happens to be police officer. 40. Narain Sahay, Circle Officer, Bandikui, who appeared in the court as P.W.23, is totally silent regarding obtaining specimen handwriting from accused Hanuman. 41. In the case of Sukhvinder Singh & Ors. v. State of Punjab, (1994) 5 Supreme Court Cases 152, before Section 311A of Cr.P.C. was introduced, specifically held that under Section 73 of the Indian Evidence Act, during pendency of the inquiry or trial, handwriting of the accused can be obtained in the presence of the court. 42. 41. In the case of Sukhvinder Singh & Ors. v. State of Punjab, (1994) 5 Supreme Court Cases 152, before Section 311A of Cr.P.C. was introduced, specifically held that under Section 73 of the Indian Evidence Act, during pendency of the inquiry or trial, handwriting of the accused can be obtained in the presence of the court. 42. To overcome the enunciation of law in Sukhvinder Singh (supra), Supreme Court in the case of State of Uttar Pradesh v. Ram Babu Misra, 1980 2 SCC 343 , held as under:- “The second paragraph of Section 73 enables the Court to give specimen writings ‘for the purpose of enabling the Court to compare’ such writings with writings alleged to have been written by such person. The clear implication of the words ‘for the purpose of enabling the Court to compare’ is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of ‘enabling the Court to compare’ and not for the purpose of enabling the investigating or other agency ‘to compare’. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing Under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should not make any difference if the investigating agency seeks the assistance of the court Under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?” 43. Obviously not. If not, why should not make any difference if the investigating agency seeks the assistance of the court Under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?” 43. In Ram Babu Misra (supra) a recommendation was made by the Supreme Court that a suitable legislation be enacted to vest power in the Magistrate to issue directions to any person including an accused person to provide specimen signatures or the handwriting during the course of investigation. 44. Section 311A of Cr.P.C., was brought on statute book on 23.6.2006. It has been held by the courts that Section 311A Cr.P.C. is prospective and cannot be applied retrospectively. Section 311A Cr.P.C. reads as under:- 311A. Power of Magistrate to order person to give specimen signatures or handwriting.- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. 45. Admittedly, in the present case, no specimen handwriting of the accused was obtained in presence of the Magistrate. 46. As per wording of the Section 311A Cr.P.C, a Magistrate has to be satisfied before giving direction that for the purpose of an investigation or proceedings under the Code, it is expedient to direct any person or accused to give specimen signature or handwriting. Therefore, before giving such a direction, a Magistrate has to record his satisfaction. In the present case, nowhere it has come in evidence that the accused appellant Hari Singh had given specimen signatures or handwriting voluntarily before Circle Officer or Officer. In the present case, even Circle Officer, Bandikui has not been examined to say that the accused voluntarily gave his specimen signatures or handwriting and he was not compelled to do so. Therefore, we rule out specimen handwriting given by the accused from consideration. In the present case, even Circle Officer, Bandikui has not been examined to say that the accused voluntarily gave his specimen signatures or handwriting and he was not compelled to do so. Therefore, we rule out specimen handwriting given by the accused from consideration. Having held so, we cannot rely upon the opinion of the handwriting expert and therefore, the report given by the Forensic Science Laboratory (Exhibit-P/58) cannot be taken into consideration. D. Evidence of Motive: 47. Balu Ram (P.W.2) father of the deceased Shankar Lal, stated that he had mortgaged his land with Arjun, Ramniwas and Surjan and case is pending in the court. This witness stated in the court that a day or two days before the occurrence, Arjun had given a threat that he will liquidate Shankar Lal. In cross-examination, this witness admitted that regarding motive, what has been stated by him in examination-in-chief was not reported to any authority earlier. This witness in cross-examination stated as under:- ^^;g lgh gS fd eq[; ijh{kk esa vtqZu yky nwljk /kedh nsus ckcr geus dksbZ f’kdk;r ntZ ugha djk;h FkhA^^ 48. Mamta (P.W.4) wife of the deceased Shankar Lal, is little specific in the court. She in examination-in-chief stated that two days before, Arjun intended to construct a wall in their land. They had restrained him and due to this, a quarrel had arisen. This witness stated in the court as under:- ^^esjs ifr dh gR;k vtqZuyky us dh D;ksafd nks fnu igys yM+kbZ gq;h Fkh mlesa vtqZu us ;g dgk Fkk fd rq>s rks eSa ekjdj NksM+saxkA vtqZuyky nhokj mBkuk pkgrk FkkA gekjh tehu ij nhokj mBkuk pkgrk Fkk tks geus mBkus ugha nh blh ckr ij >xM+k gqvk FkkA^^ 49. In cross-examination, this witness admitted that when missing report was lodged, at that time, she along with her mother-in-law and father-in-law were present along with Devar. In cross-examination, this witness admitted that regarding the fight which had taken place two days earlier, they had not lodged any report. This witness stated as under:- ^^eSaus nks fnu igys tks yM+kbZ gksus dh ckr eq[; ijh{kk esa* crk;h gS ml ckcr ml fnu eSaus dksbZ iqfyl esa fjiksVZ ntZ ugha* djk;hA^^ 50. To similar effect is the statement made by Muthresh (P.W.5) brother of the deceased Shankar Lal, Lad Bai (P.W.7) sister of the deceased, Manbhari (P.W.8) mother of the deceased. 51. To similar effect is the statement made by Muthresh (P.W.5) brother of the deceased Shankar Lal, Lad Bai (P.W.7) sister of the deceased, Manbhari (P.W.8) mother of the deceased. 51. Thus, evidence of motive has only emerged in the testimony of close relations of the deceased. It is admitted fact that regarding the threat given by the accused two days earlier to the occurrence, no report was made to any authority. The matter was not reported to any Sarpanch or any respectable person of the village. We may notice here that in the missing report (Exhibit-P/6), nothing is stated by Muthresh (P.W.5) that they suspect that Arjun due to earlier incident may have committed the crime. 52. In written report (Exhibit-P/11), after the dead body was recovered, suspicion was raised against eleven persons including Arjun. Therefore, in written report, window was kept too wide and open to introduce anybody as accused. We may also notice here that in the written report (Exhibit-P/11), Hanuman appellant to D.B. Cr. Appeal No. 171/2015, was not named. It has come in evidence of Balu Ram (P.W.2), father of the deceased that they had mortgaged their land to Arjun Lal and case is pending between the parties before the court. Motive is double edged weapon. We cannot rule out that equally there can be motive on the part of the complainant party to involve Arjun Lal as accused for settlement of suit, pending in the court and redemption of the land. Even otherwise, we are of the view that motive in itself is not sufficient to uphold the conviction. 53. Taking totality of circumstances, for the reasons given by us, the prosecution has miserably failed to complete the chain of circumstances to arrive at a conclusion that the appellants alone have committed the offence. 54. R.S. Chauhan, J., speaking for Division Bench to which one of us (Kanwaljit Singh Ahluwalia, J.) was also party, in Chand Mal v. State of Rajasthan, D.B. Criminal Appeal No.777/2008, decided on 11.2.2015, observed as under:- “It is, indeed, trite to state that the prosecution has to cover the long distance between “may be true” and “must be true”. Merely by flashing few pieces of evidence which are incomplete in their nature and scope, the prosecution does not succeed in establishing its case beyond a reasonable doubt. Merely by flashing few pieces of evidence which are incomplete in their nature and scope, the prosecution does not succeed in establishing its case beyond a reasonable doubt. Even if the prosecution succeeds in creating a strong suspicion against the accused, even then the accused cannot be convicted. For, convictions cannot be based on conjunctures or surmises, or on strong suspicion. The prosecution is required to prove its case through cogent and convincing evidence; each linking evidence has to form a chain which leads to the only conclusion that the crime could have been committed only by the accused person, or persons and by none other. [refer to Vijay Thakur v. State of H.P. (2014) 14 SCC 609 ]” 55. On the touch stone of the law propounded by the Supreme Court to appreciate case of circumstantial evidence, we have no hesitation to hold that in the facts and circumstances of the case, the prosecution has failed to connect the present appellants with the crime. 56. Consequently, all the appeals are accepted and the conviction pronounced and the sentences awarded by the trial court are set aside and the appellants are acquitted of the charges. 57. In view of the acceptance of the appeals, in above terms, we order that the appellants be released forthwith, if in custody and not required in any other case. 58. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants 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 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 appellants on receipt of notice thereof, shall appear before the Apex Court. Appeal allowed.