JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. Ishwar Singh son of Ram Singh has directed the present appeal to assail the judgment dated 23.5.2011 rendered by the Additional Sessions Judge (Fast Track) No.1, Kota whereby the appellant was convicted for offence under Section 302 IPC. Vide a separate order of even date, the trial Judge sentenced the appellant to undergo life imprisonment for offence under Section 302 IPC and directed the appellant to pay a fine of Rs.2,000/-, in default thereof to undergone one month simple imprisonment. The trial Judge further ordered that the period already undergone by the appellant during the period of trial shall be set-of from the sentence awarded. 2. Case of the prosecution is that after 6.30 PM on 23.5.2009 and before morning of 24.5.2009, appellant by giving blows with stone caused murder of Ganesh and thereby committed offence punishable under Section 302 IPC. Criminal proceedings were set into motion on the basis of written report (Ex.P.3) presented by Nanu Gurjar (PW.3). Constable Shivraj (PW.10) in court deposed that on 24.5.2009 he was posted as Constable at Police Station Bheemganj Mandi. On that day at 8.35 AM on the instruction given by SHO, he along with ASI Om Prakash and Constable Karan Singh reached near Ummed Palace. Upon reaching there he found that beneath a tree a dead body was lying. In front of him, Mangal Gurjar on the basis of details given by Nanu Gurjar (PW.3), had written a report (Ex.P.3) and in turn he had submitted the report before Chandan Singh (PW.15) who was then posted as SHO, Police Station Bheemganj Mandi. The witness stated that on the basis of written report (Ex.P.3), formal FIR bearing FIR No.136/09 (Ex.P.8) was registered at Police Station Bheemganj Mandi for offence under Section 302 IPC. We shall reproduce the true translation of written report (Ex.P.3) as under:- "To, The SHO, P.S. Bheemganj Mandi, Kota. Sub.: Regarding murder of my maternal uncle Ganesh s/o Chhogalal Gurjar by unidentified person. Sir, It is submitted that my maternal uncle Ganesh s/o chhogalal Gurjar, aged 45 years, was residing in Nanda Ki Bari, Near Kehdli Phatak, Kota. He was engaged in the business of selling milk. Yesterday evening at 6.30 PM he left the house by saying that meals be cooked and he is returning. However, he did not return for whole night. He was engaged in the business of selling milk. Yesterday evening at 6.30 PM he left the house by saying that meals be cooked and he is returning. However, he did not return for whole night. At 10.00 PM in night his sons Hari, and Sawara went in search of him. In morning at 6.30 AM both his sons along with mother Laxmi Bai reached near Ummed Bhawan Palace and found that beneath a tree, dead body of Ganesh was lying. Head of the dead body was smashed with a stone. Blood was lying beneath the head. Near the dead body, an empty quarter of liquor and a bottle of water was lying. Near the dead body, a big stone stained with blood was also lying. Some unidentified persons had murdered my maternal uncle Ganesh. Written report is presented. Action be taken. Sd/- Nanu Gurjar s/o Mangilal Gurjar" 3. From perusal of the written report (Ex.P.3), following facts are discernible:- (a) That the deceased at 6.30 PM in the evening left the house by saying that meals be cooked and he is returning. (b) That the deceased did not return for whole night and his wife and sons had gone in search of him on the next day morning at 6.30 AM. (c) Next day in the morning dead body was found near Ummed Palace, beneath a tree. (d) That head of the deceased Ganesh was smashed with a stone and a stone having blood stains was lying near the dead body. (e) That near the dead body, a quarter of liquor and an empty bottle were lying. 4. Prosecution in order to secure conviction of the appellant examined sixteen witnesses and proved on record documents, Exhibits-P.1 to P.27. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. He denied all incriminating circumstances and pleaded innocence and further took a stand that he has been falsely implicated. No witness was examined in defence. However, defence relied upon statements of Sanwara (PW.8) and Laxmi Bai (PW.13) recorded by the police under Section 161 Cr. P.C. as Exhibits-D.1 and D.2 respectively. 5. Rajkumar Lodha @ Raju (PW.1) deposed before the court that he knew Ishwar Singh and Ganesh Gurjar. Both had come to his shop to take tea. One day before the date of occurrence, Ishwar Singh came to his tea shop alone. P.C. as Exhibits-D.1 and D.2 respectively. 5. Rajkumar Lodha @ Raju (PW.1) deposed before the court that he knew Ishwar Singh and Ganesh Gurjar. Both had come to his shop to take tea. One day before the date of occurrence, Ishwar Singh came to his tea shop alone. At that time, his two friends were sitting there. After taking tea, they left the shop after 5-10 minutes. The witness stated that at that time Ganesh Gurjar was not with Ishwar Singh. The witness was declared hostile to the prosecution. He was cross-examined by the Additional Public Prosecutor. The accused disowned the statement (Ex.P.1) made before the police. 6. Dr. Rakesh Sharma (PW.2) on 24.5.2009 being posted as Medical Jurist at MBS Hospital, Kota conducted autopsy on the dead body of deceased vide post-mortem report (Ex.P.2) and as per his statement, had found following injuries on the person of deceased Ganesh:- ^^pksV %& 1- dqpyk gqvk ?kko 7 xq.kk 2 lseh xq.kk gM~Mh dh xgjkbZ rd yykV ij nka;h rjQA pksV %& 2- dqpyk gqvk ?kko 4 xq.kk 2 xq.kk gM~Mh dh xgjkbZ rd cka;h duiVh ijA pksV %& 3- jxM+ 2 xq.kk 1 lseh yykV ij cka;h rjQA pksV %& 4- dqpyk gqvk ?kko 5 xq.kk 4 xq.kk gM~Mh dh xgjkbZ rd ukd ijA pksV %& 5- lwtu uqek pksV flj esa cka;h rjQA pksV %& 6- jxM+ 2 xq.kk 1 lseh xnZu ij cka;h rjQA pksV %& 7- flj dh cka;h rjQ rFkk yykV ij gheksVksek ik;k x;kA pksV %& 8- cka;h fQzBj vkSj cka;h iSjkbVy vfLFk dk vfLFkHkax ik;k FkkA pksV %& 9- efLr"d ds cka;h QzBy vkSj cka;h iSjkbZVy Hkkx esa lc M~;wjy gSeksVksek ik;k FkkA pksV %& 10- efLr"d dk vo;o lwtk gqvk Fkk rFkk dUtsLVsM FkkA** In cross-examination this witness stated that regarding presence of alcohol he had sent viscera for medical examination. 7. Nanu Gurjar (PW.3) in court deposed that the deceased Ganesh was his maternal uncle. On 23.5.2009 he had left the house after telling his wife to cook meals. Till 10.00 PM his maternal uncle had not returned. The witness stated that at 10.00 PM both sons of the deceased had gone for search of his maternal uncle. On the next day on 24.5.2009 both the children and wife of the deceased went in search of deceased. Inside Ummed Bhawan Palace beneath a tree the dead body was lying. Till 10.00 PM his maternal uncle had not returned. The witness stated that at 10.00 PM both sons of the deceased had gone for search of his maternal uncle. On the next day on 24.5.2009 both the children and wife of the deceased went in search of deceased. Inside Ummed Bhawan Palace beneath a tree the dead body was lying. Head of his maternal uncle was smashed by causing injury with a stone. On asking, children of deceased informed him that Ishwar Singh Choudhary accused had came to their house and had taken their father. The witness stated that written report (Ex.P.3) was written by Mangal, son of his uncle. The witness admitted in court to be correct that in written report (Ex.P.3) he has not specified that on 23.5.2009 his maternal uncle had left with the accused Ishwar Singh. We reproduce following portion of cross-examination of Nanu Gurjar (PW.3) as under:- ^^;g lgh gS fd izn'kZ ih&3 esa eSaus ;g ugha fy[kk;k fd fnukad 23-05-2009 dks esjs ekek x.ks'k] bZ'oj flag ds lkFk 'kke dks x;s FksA** The witness further stated that as per information relayed to him by Hari (PW.5). He has deposed in court that deceased Ganesh had left with Ishwar Singh accused. 8. Paras Mal (PW.4) stated that on 24.5.2009 he was posted as S.I. at Police Station Bheemganjmandi. In the morning at 9.00 AM, Constable Shivraj (PW.10) had presented written report (Ex.P.3) on the basis of which formal FIR (Ex.P8) bearing FIR No.136/09 was registered at Police Station Bheemganj Mandi for offence under Section 302 IPC. 9. Hari (PW.5) is son of deceased Ganesh. In court this witness deposed that on 23.5.2009 at 6.00 PM Ishwar Singh came to their house. He identified Ishwar Singh as accused present in court. The witness stated that his father was sleeping. Accused awoke his father. His father demanded money for purchase of one quarter of liquor. Accused stated that he is not having money. Accused further stated that at 7.00 PM he should accompany him to take liquor. Accused at 7.00 PM had called his father by making indication. Thereafter his father and Ishwar Singh had left the house on a Hero Honda Motorcycle belonging to Ishwar Singh. Thereafter in morning they found dead body of his father beneath a tree near Ummed Bhawan Palace. Accused at 7.00 PM had called his father by making indication. Thereafter his father and Ishwar Singh had left the house on a Hero Honda Motorcycle belonging to Ishwar Singh. Thereafter in morning they found dead body of his father beneath a tree near Ummed Bhawan Palace. The witness in court stated that at 9.00 AM in the morning he disclosed above facts to Nanu Gurjar (PW.3). Thereafter Nanu (PW.3) had written the report (Ex.P.3). The witness stated that he disclosed to Nanu (PW.3) that in the evening at 6.00 PM Ishwar Singh accused came to his house and demanded money for purchase of liquor from his father. We reproduce the following portion from the testimony of Hari (PW.5):- ^^lqcg 9 cts ukuw dks Qksu djds ?kj ls cqyk;k FkkA ukuw dks lkjh ckrsa eSaus crkbZ FkhA mlds ckn ukuw us cSBdj fjiksVZ fy[kh FkhA eSaus ukuw dks crk fn;k Fkk fd 'kke dks 6 cts bZ'oj flag gekjs ?kj ij vk;k Fkk vkSj mlus esjs firk ls DokVZj ds iSls ekaxs FksA eSaus ukuw dks ;g Hkh crk fn;k Fkk fd blds ckn 'kke dks 7 cts bZ'oj flag gekjs ?kj vk;k vkSj esjs firk muds lkFk pys x;sA ;g lgh gS fd esjs ikik tkuojksa dks pjkus ds fy;s taxy esa tkrs FksA mEesn Hkou ds taxyksa esa pjkus ys tkrs FksA ogha taxy tgka esjs firk th dh yk'k feyhA esjs firk jkstkuk 'kjkc ugha ihrs Fks] dHkh&dHkh ihrs FksA** The witness further admitted to be correct that on 23.5.2009 at 3.00-3.30 PM his father returned back after grazing the cattle in Jungle. Thereafter his father consumed quarter of liquor and thereafter slept. The witness further stated that he himself had heard that Ishwar Singh was telling his father to take liquor. In the concluding portion of his cross-examination the witness admitted that his statement was recorded by police on 25.5.5009 and he was informed by the police that his father has been murdered by Ishwar Singh accused. The witness further stated that he himself had heard that Ishwar Singh was telling his father to take liquor. In the concluding portion of his cross-examination the witness admitted that his statement was recorded by police on 25.5.5009 and he was informed by the police that his father has been murdered by Ishwar Singh accused. We reproduce following portion of cross-examination of the witness as under:- esjs c;ku iqfyl us fnukad 25-05-2009 dks fy[ks FksA ;g ckr lgh gS fd iqfyl okyksa us gh crk;k Fkk fd rsjs firk dh gR;k bZ'oj flag us dh gSA We may also notice here that the witness in cross-examination admitted that when they had gone for search of his father, Ishwar Singh accused was present in his house. 10. Sheoraj (PW.6) deposed in court that Gansh is husband of his sister. He further stated that his sister and nephew have searched for the dead body and the same was found near Ummed Bhawan. The witness stated that near the spot they found three quarters of English liquor and one stone. The witness stated that the police had taken into possession pant, shirt and chappal of deceased vide memo (Ex.P.9). The police has prepared site plan (Ex.P.6). He attested the inquest/Panchayatnama (Ex.P.7). Police handed over dead body after preparing Supurdaginama (Ex.P.4). He also attested memo (Ex.P.10) regarding recovery of blood stained clothes of the deceased. The witness further stated that police had lifted foot moulds vide memo (Ex.P.11) and the spot was photographed and a memo (Ex.P.12) was prepared in this regard. 11. Laxman (PW.7) stated that he knew Ganesh as he belonged to his community. The witness stated that on 23.5.2009 at 7.30 PM he had seen Ganesh and Ishwar Singh going towards forest near Ummed Bhawan. Thereafter he had gone to his house. The witness stated that Ganesh and Ishwar Singh were carrying water bottle and disposable glasses. In cross-examination the witness admitted that accused Ishwar Singh was staying near to his house after leaving one or two streets. The witness further stated that when deceased was going along-with accused, he had wished Ganesh. The witness in cross-examination admitted that he had disclosed the factum of deceased seen along with accused to his sons Hari (PW.5) and Sanwara (PW.8) and Nanu Gurjar (PW.3). The witness further stated that in his presence no report was submitted to the police. The witness further stated that when deceased was going along-with accused, he had wished Ganesh. The witness in cross-examination admitted that he had disclosed the factum of deceased seen along with accused to his sons Hari (PW.5) and Sanwara (PW.8) and Nanu Gurjar (PW.3). The witness further stated that in his presence no report was submitted to the police. He remained at the spot for ½ or 1 hrs. We reproduce following portion from testimony of Laxman (PW.7) as under: ^^;g lgh gS fd eSaus ogha ij gfj] lkaojk] ukuw dks crk fn;k Fkk fd eSaus x.ks'k dks bZ'oj flag ds lkFk 'kke dks ns[kk FkkA** The witness further stated to be correct that Hari (PW.5) and Sanwara (PW.8) told him that his father had gone along with accused Ishwar Singh. 12. Sanwara (PW.8) is another son of deceased Ganesh. He also deposed in court that his father used to take cattle towards Ummed Bhawan. The witness stated that a day before the dead body was found, Ishwar Singh had come to their house. He stayed in the house for ½ hr. At that time his father was inside the room. The witness stated that Ishwar Singh had demanded money from his father. In cross-examination, the witness further stated that from the day he became conscious he is seeing that his father has been taking liquor with the accused. The witness in court stated that on the day of occurrence, Ishwar Singh accused had taken his father along with him on a motorcycle. The witness in cross-examination admitted that he had disclosed to police with whom his father had accompanied. The witness further stated that report regarding murder of his father was lodged by Nanu (PW.3). He had disclosed to Nanu (PW.3) that his father in the evening had left with accused. We reproduce following portion from the cross-examination of Sanwara (PW.8) as under:- ^^iqfyl okyksa dks eSaus ekSds ij gh crk fn;k Fkk fd esjs firk dc fdlds lkFk x;s FksA bl eqdnes dh fjiksVZ ukuw us fy[kdj nh FkhA eSaus ukuw dks ;g ckr crk nh Fkh fd firkth bZ'oj flag pkS/kjh ds lkFk ?kj ls 'kke dks 'kjkc ihus ds fy, x, FksA** The witness further stated that in the night when his father had not returned, they went to the house of Ishwar Singh at about 10.00 PM. There Ishwar Singh was present and he informed that he is not aware about the whereabouts of his father. We reproduce the following portion from cross-examination of Sanwara (PW.8):- ^^jkf= dks tc esjs firk ?kj ugha vk;s rks eSa bZ'oj flag ds ?kj ij Hkh iwNus x;k Fkk ;g lgh gS fd ml le; bZ'oj flag ?kj ij gh Fkk vkSj mlus dgk fd dqN irk ugha gSA** 13. Mangal Gurjar (PW.9) who on the dictation of Nanu Gurjar (PW.3) had written the report (Ex.P.3), admitted in court that he had scribed the written report (Ex.P.3). The witness further stated that from the accused pant, T-shirt and a pair of Chappal was recovered vide memo (Ex.P.9). 14. Govind Singh (PW.11) was posted as in-charge of Malkhana. This witness has been examined to prove the link evidence. Mukut Bihari (PW.12) stated that on 24.5.2009 he was posted as Head Constable in MOB Branch of Police. This witness stated that at the spot he found marks of two Chappals which he had lifted after preparation of foot moulds. The witness in cross-examination stated that only one foot mould was lifted and before taking foot mould, they have not taken permission from any Judicial Officer. 15. Laxmi (PW.13) also deposed in court regarding evidenced last seen. She deposed on same lines as her two sons Hari (PW.5) and Sanwara (PW.8) had deposed that accused had come to their house and had taken her husband for taking liquor. 16. Laxman Singh (PW.14) was posted as ASI in Police Control Room and he had taken photographs at the spot. 17. Chandan Singh (PW.15) being Investigating Officer has proved various facets of investigation. The witness in cross-examination admitted that houses of Ishwar Singh accused and Ganesh deceased are in front of each-other. The witness admitted to be correct that superior Officers have given a direction that finger prints be lifted from the bottle of liquor and disposable glasses. The witness further stated that vide recovery memo (Ex.P.9) on disclosure of accused they recovered blood stained T-shirt, Pant and Chappal of accused. 18. Harveer Singh (PW.16) had taken sealed packets to the State Forensic Science Laboratory. 19. Thus, from the above evidence noted by us following incriminating circumstances have emerged in the case of prosecution:- (a). The witness further stated that vide recovery memo (Ex.P.9) on disclosure of accused they recovered blood stained T-shirt, Pant and Chappal of accused. 18. Harveer Singh (PW.16) had taken sealed packets to the State Forensic Science Laboratory. 19. Thus, from the above evidence noted by us following incriminating circumstances have emerged in the case of prosecution:- (a). That the deceased was last seen along with the accused as per the statements of Hari (PW-5), Sanwara (PW-8), sons of the deceased, and Laxmi (PW-13) wife of the deceased. Laxman (PW-7) has also deposed in court that he had seen the deceased along with the accused carrying quater of liquor and disposable glasses. (b). That from the spot foot moulds were lifted and thereafter, specimen moulds of Chappal of the accused were prepared. (c). That from the possession of the accused his T-shirt, Pant, and Chappal worn at the time of occurrence were taken into possession by the Police. Evidence of Last Seen 20. As per prosecution case, deceased had left his house along with Ishwar Singh accused on 23.05.2009 at 06:30 PM. The accused had not returned in the night till 10:00 PM. Thereafter, his wife and sons had gone for search of the deceased. On 24.05.2009 his dead body was recovered beneath a tree near Ummed Bhawan Palace. We have extensively reproduced the relevant portion from the statements of Hari (PW-5), Laxman (PW-7), Sanwara (PW-8) and Laxmi (PW-13) made in court wherein they have deposed that they had disclosed the factum of last seen to Nanu Gurjar (PW-3). We find that the written report (Ex. P3) is totally silent regarding the deceased last seen with the accused. In the written report (Ex. P3) name of the accused has not been specified. We are at our wits to find as to why name of accused was not specified in written report (Ex. P3) if witnesses Hari (PW-5), Laxman (PW-7), Sanwara (PW-8) and Laxmi (PW-13) had narrated to Nanu Gurjar (PW-3) the factum of deceased last seen with accused. We further find that occurrence had taken place on 23.05.2009 sometime after 06:30 PM. In the night at 10:00 PM the witnesses had contacted Ishwar Singh accused at his house. He had feigned ignorance regarding whereabouts of the deceased. Written report (Ex. P3) was presented on 24.05.2009 at 09:20 AM. We further find that occurrence had taken place on 23.05.2009 sometime after 06:30 PM. In the night at 10:00 PM the witnesses had contacted Ishwar Singh accused at his house. He had feigned ignorance regarding whereabouts of the deceased. Written report (Ex. P3) was presented on 24.05.2009 at 09:20 AM. The statements of the witnesses to last seen, i.e. Hari (PW-5), Laxman (PW-7) and Sanwara (PW-8) were recorded on 25.05.2009 and statement of Laxmi (PW-13) was recorded on 27.05.2009. Had the witnesses seen the deceased with the accused they would have immediately prompted Nanu Gurjar (PW- 3) or have disclosed this fact to the police on 24.05.2009 itself. We are of the view that as an afterthought evidence of last seen was introduced. In State of Rajasthan the case diary at the time of arrest is not produced before the Magistrate. Thus, we cannot say with certainty that statements of the witnesses namely Hari (PW- 5), Laxman (PW-7) and Sanwara (PW-8) under Section 161 Cr.P.C. were recorded on 25.05.2009 and of Laxmi (PW-13) was recorded on 27.05.2009 and were not antedated. Be that as it may, on 24.05.2009 the evidence of last seen had not emerged during the course of investigation. Therefore, it was introduced as an afterthought at belated stage. Thus, we disbelieve the evidence of last seen especially when Hari (PW-5) has admitted in cross examination that he was informed by police that his father has been murdered by Ishwar singh and then on 25-05-2009 his statement was recorded by police. Evidence of lifting of foot moulds 21. Now we have to deal with the evidence of foot moulds lifted from the spot and specimen moulds of Chappal prepared by the Investigating Agency. As per FSL report (Ex. P26) sole impression reproduced in Ex. 1.L and Ex. 1.R is similarly to the sole of Chappal Ex. 2.L and Ex. 2.R respectively so far shape, design and dimension is concerned. 22. A Division Bench of this court to which one of us (Kanwaljit Singh Ahluwalia J.) was a party, in Sunder & Ors. v. State of Rajasthan [ 2015 (2) WLC 250 ], noted rule 6.26 of the Rajasthan Police Rule, 1956, as under:- "6.26. Importance of footprints and track evidence.- (1) Footprints are of the first importance in the investigation of crime. v. State of Rajasthan [ 2015 (2) WLC 250 ], noted rule 6.26 of the Rajasthan Police Rule, 1956, as under:- "6.26. Importance of footprints and track evidence.- (1) Footprints are of the first importance in the investigation of crime. For this reason all Officers in-charge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime. (2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for the identification of suspects. The attendance of a magistrate of the highest available status, shall be secured or, if that is impossible, independent witnesses of reliable character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity with the reasonable directions which they may give, ground shall be prepared for the tests. On this ground the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police Officer conducting the test, shall record the names of all these persons and the order in which they enter the test ground. While these preparations are preceding the tracker or other witness, who is to be asked to identify the tracks shall prevented from approaching the place or seeing any of the persons concerned in the tests. When all preparations are complete the witness shall be called up and required to examine both the original tracks and those on the test ground, and thereafter to make his statement. The magistrate, or in his absence, the police Officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bona fides. The Officer investigating the case and his assistants shall be allowed no share in the conduct the test. The Officer investigating the case and his assistants shall be allowed no share in the conduct the test. Tracks found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating Officer. The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The Officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given a fair chance, but under the strictest safeguards, of comparing with the original tracks, other tracks made on similar ground and in similar conditions. (3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of the criminal or criminals found at the scene of the crime. In making moulds for production as evidence the following precautions should be observed:- (a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds . (b) The latter must also be signed or marked by the witnesses and the Officer preparing them while still setting. (c) After the procedure described in Sub-rule (2) above has been completed a mould should be prepared in the presence of the Magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the Magistrate or witnesses when still setting. (d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court." Dilating the above rule 6.26(3), the Division Bench in the case of Sunder and others (supra) held as under:- "Thus, Rule 6.26 (3) requires that prior to taking the impression of the footprints and before making a mould, the footprints found on scene of the crime must be pointed out to reliable witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. The said moulds have to be signed either by the Magistrate, or the witnesses. According to Rule 6.26 (3) (d), during the course of trial the mould should be produced in the court for identification by the witnesses and comparison by the court." 23. Admittedly, no foot moulds were prepared either in-front of the Magistrate or in-front of the witnesses. 24. Furthermore, in the present case provisions of Sections 4 and 5 of Identification of Prisoners Act, 1920 (hereinafter called as 'the Act of 1920') have not been complied with. In the judgment rendered by the Division Bench in Sunder and others (supra), Sections 4 and 5 of the Act, 1920 were noted as under:- "4. Taking of measurements, etc., of non-convicted persons. - Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police Officer, allow his measurements to be taken in the prescribed manner. 5. Power of Magistrate to order a person to be measured or photographed. - If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898) [now, Code of Criminal Procedure, 1973 (2 of 1974)] it is expedient to direct any person to allow his measurements or photograph to be taken, 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 the order and shall allow his measurements or photograph to be taken, as the case may be, by a police Officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, 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. " The Division Bench of this Court in the case of Sunder and others (supra) on joint reading of Section 4 and 5 of the Act of 1920 and rule 6.26 of Rajasthan Police Rules, 1965 observed as under:- "Section 5 prescribes the manner in which the measurement of a non-convicted person is to be taken. Therefore, before a foot impression of an accused can be taken during the course of investigation, the procedure as laid down by Section 5 has to be followed. A magistrate has to be satisfied in order to direct the person to allow his measurements or photographs to be taken. The said order has to be passed by the magistrate of the First Class. However, in the present case no such order has been passed by the magistrate of the First Class directing the appellants to allow the police to take their footprints. According to Rule 6.26 of the Rajasthan Police Rules, 1965 the procedure for securing the record of such footprint shall be similar to that prescribed for holding a T.I. parade of suspects under Rule 7.31. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. For, according to Exhibit-P.34 the footprints were lifted before two Police Constable, namely Dayanand and Ghamsi Ram. The investigating Officer, Gopal Singh (P.W.30) has not given any explanation for non-procuring of the Magistrate of the highest rank, and for non-procuring of a witness of reliable character." 25. We may also notice here that the Supreme Court in the case of Mohd. Aman v. State of Rajasthan [ (1997) 10 SCC 44 ] has held that signs of identification of foot prints is not a fully developed signs and is a week sort of evidence for convicting the accused. We are of the view that identification of culprit has to be determined before evidence of footprint can be used for identification of the assailants. We are of the view that identification of culprit has to be determined before evidence of footprint can be used for identification of the assailants. In the case of Sunder and others (supra) the Division Bench has held as under:- "In the case of Leelaram & Ashok v. State of Rajasthan [2008(1) RLW 745], this court had expressed its opinion that foot impression mould should be taken either before a magistrate, or at his direction, or under his order. In the case of Mohd. Aman v. State of Rajasthan [ (1997) 10 SCC 44 ], the Apex Court has disbelieved the evidence of footprint inter alia on the ground that the sample was not taken before a magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Sigh and Anr. v. State of Punjab 1996 (6) SCALE 72 the Hon'ble Supreme Court opined that where the prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellants. Therefore, this court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellants." 26. In view of above, we cannot rely on the evidence of matching of foot moulds lifted at the spot with the sample impression of Chappal recovered from the accused. Recovery of clothes of accused 27. Now, we are left with the recovery of cloths of the accused. We have perused the report (Ex. P25) submitted by SFSL. We find that on the clothes of the accused and the deceased even though the human blood has been found but Blood Group has not been determined. As per the report of SFSL, Blood Group was inconclusive. Thus, on this score also prosecution has miserably failed to connect the accused with the offence alleged. P25) submitted by SFSL. We find that on the clothes of the accused and the deceased even though the human blood has been found but Blood Group has not been determined. As per the report of SFSL, Blood Group was inconclusive. Thus, on this score also prosecution has miserably failed to connect the accused with the offence alleged. Even otherwise, recovery of clothes is not sufficient to uphold the conviction of the accused as prosecution has failed to complete the chain of circumstances to arrive at a conclusion that the offence has been committed by the accused alone and nobody else. 28. In the case of Sunder and others (supra) the Division Bench has observed as under:- "A critical and holistic analysis of the evidence clearly reveals that the prosecution has failed to travel the distance between "may be true" and "must be true". Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle which are conspicuously missing. The evidence is neither cogent, nor convincing for upholding the conviction of the appellants for the alleged crime. Therefore, the appellants deserve to be given the benefit of doubt by this court." 29. We also find that in the present case also prosecution has not led any evidence for arriving at the conclusion that the offence has been committed by the appellant alone and by nobody else. 30. Consequently, in view of discussion made above, we accept the present appeal by extending benefit of doubt to the present appellant by way of abundant caution. We set aside the conviction and sentence imposed by the trial court upon the appellant and acquit him of the charges. 31. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Ishwar Singh, is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.