JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Ajay Gupta aged 52 years, on 23.3.2008, left his house on motorcycle Bajaj Pulsar, to attend Holi Milan Party with his colleagues. Ajay Gupta had not returned to his house. His family members carried search. On 24.3.2008 at about 6:00 PM, Anil Gupta (P.W.5) cousin of the Ajay Gupta went to Police Station Ramganj to inquire about whereabouts of his brother and was informed that an unidentified dead body is lying in the mortuary of Jawahar Lal Nehru Hospital, Ajmer. The complainant Anil Gupta (P.W.5) reached at mortuary and identified the dead body to be of his brother Ajay Gupta. 2. After identification of the dead body, Anil Gupta (P.W.5) presented written report (Exhibit-P/11), before Dilip Sharma (P.W.25), who was then posted as SHO, Police Station Ramganj, Ajmer. In the written report (Exhibit-P/11) Anil Gupta (P.W.5) stated that when his brother left his house to attend the Party, he was carrying a purse having his photograph, Election I.D. Card, ATM and Credit Cards. In the written report, Anil Gupta (P.W.5) also stated that though the dead body is lying in the mortuary, but purse, mobile and motorcycle of the deceased brother are missing. In the written report (Exhibit-P/11), Anil Gupta (P.W.5) further stated that his brother is having serious injuries on head and other parts of the body, therefore, he has suspicion that assailants after committing robbery of motorcycle, purse and mobile caused his murder. 3. On the basis of written report (Exhibit-P/11), contents of which we have reproduced above, a formal FIR (Exhibit-P/12) bearing No.42/08 was registered at Police Station Ramganj, District Ajmer for the offences punishable under Sections 302 and 394 IPC. The above said FIR was investigated. During the course of investigation, Sonu @ Jun son of Ram Lal, by caste Harijan, Pooran @ Poorniya son of Basanti Lal, by caste Nayak, and Anil Kumar son of Mohan Singh, by caste Kushwaha, were nominated as accused. They were tried by the court of Additional Sessions Judge (Fast Track), No.1, Ajmer. The said court vide impugned judgment dated 4.4.2009, held the appellant Sonu @ Jun and Pooran @ Poorniya guilty of offences punishable under Sections 302/34 and 397 IPC. The accused Anil Kumar, who was initially charged for the offence under Section 404 IPC, was convicted for the said offence. The said court vide impugned judgment dated 4.4.2009, held the appellant Sonu @ Jun and Pooran @ Poorniya guilty of offences punishable under Sections 302/34 and 397 IPC. The accused Anil Kumar, who was initially charged for the offence under Section 404 IPC, was convicted for the said offence. The trial Judge, having convicted the appellants for the above said offences, vide a separate order of even date, sentenced them as under:- U/s. 302/34 IPC-to undergo life imprisonment and to pay a fine of Rs.1000/-; each in default of payment of fine, to further undergo additional three months SI. U/s. 397 IPC-to undergo seven years R.I. U/s.404 IPC-to undergo one year R.I. and to pay a fine of Rs.500/-, in default of payment of fine to further undergo one month S.I. All the sentences were ordered to run concurrently. 4. Aggrieved against their conviction and sentence, appellant Sonu @ Jun has filed D.B. Criminal Appeal No. 674/2009, Pooran @ Poorniya has preferred D.B. Criminal Appeal No. 176/2011 and Anil Kumar has instituted D.B. Criminal Appeal No. 440/2009. Since in all the three appeals, common judgment has been assailed, all the three appeals listed before us, shall be decided together. 5. In the present case, none has witnessed the occurrence. To secure the conviction of the appellants, the prosecution has relied upon the circumstantial evidence. It is to be noted that in the written report (Exhibit-P/11), leading to registration of FIR (Exhibit-P/12), it was stated that three pieces of property/articles belonging to deceased were missing, i.e. motorcycle, purse containing Election I.D. Card, ATM and Credit Cards. All the above three pieces of property/articles have been recovered from each accused. 6. As per prosecution, Sonu @ Jun got recovered motorcycle, Pooran @ Poorniya got recovered purse containing Election I.D. Card, two ATM Cards, whereas, from the person of Anil Kumar, mobile of the deceased was recovered. 7. Besides, the recoveries of these three pieces of property/articles, the prosecution has tried to connect Pooran @ Poorniya by examining ASI Nazir Ahmed (P.W.14). According to Nazir Ahmed (P.W.14), on 24.3.2008 at 8:00 AM, Pooran @ Poorniya was admitted in Nasirabad Hospital and thus, an attempt has been made to say that between the same duration, accused Pooran @ Poorniya had also suffered injuries. 8. According to Nazir Ahmed (P.W.14), on 24.3.2008 at 8:00 AM, Pooran @ Poorniya was admitted in Nasirabad Hospital and thus, an attempt has been made to say that between the same duration, accused Pooran @ Poorniya had also suffered injuries. 8. The prosecution in order to prove its case, examined twenty five witnesses and proved on record documents from Exhibit-P/1 to Exhibit-P/38. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. They denied all incriminating circumstances and no witness was examined in defence. 9. Dr. Ashutosh Shrivastav (P.W.16) on 25.3.2008 at 1:20 PM, had conducted autopsy on the dead body of Ajay Gupta. This witness has proved on record the Post Mortem Report (Exhibit-P/22). In the said Post Mortem Report (Exhibit-P/22), following injuries have been noticed:- "(i) Abrasion 3 x 0.5 cm on left side forehead with left eye black eye, Reddish. (ii) Abrasion 7 x 5 cm Lateral to left eye, on left cheek, Reddish. (iii) Lacerated wound left temporal region 2 x 1 cm x muscle deep with contused diffuse swelling left TPO region. Blood clot present. (iv) Two abrasions on left knee lateral 1.5 x 1.0 cm to 2 x 2 cm, Reddish. On dissection of head: Sub scalp haematoma present on left TPO region. Linear fracture of left temporal bone 3.0 cm long oblique. SDH present all over the brain surface. Brain is congested and odematous." 10. As per opinion of the doctor, all injuries were caused by blunt weapon with force and were ante mortem in nature. As per opinion of the doctor, injury No.3 was fatal in nature. We may notice here that all injuries are on the left side of the body of the deceased. 11. In cross-examination, Dr. Ashutosh Shrivastava (P.W.16) stated that possibility cannot be ruled out that the deceased Ajay Gupta before his death may have consumed alcohol, as Liver and Spleen were congested. 12. Anil Gupta (P.W.5) in the court deposed that Ajay Gupta was his cousin being son of his uncle (Chacha). This witness stated that deceased Ajay Gupta was posted as Welfare Inspector in Carriage Workshop. On 23.3.2008, at around 7:00 - 7:30 PM, he had gone to attend party along with his friends at carriage ground. This witness stated that Ajay Gupta had left his house on motorcycle bearing No. RJ 01 SA 2666. This witness stated that deceased Ajay Gupta was posted as Welfare Inspector in Carriage Workshop. On 23.3.2008, at around 7:00 - 7:30 PM, he had gone to attend party along with his friends at carriage ground. This witness stated that Ajay Gupta had left his house on motorcycle bearing No. RJ 01 SA 2666. This witness stated that the deceased was having mobile No. 9829793733. He was also having a purse containing ATM Card and Election I.D. Card. This witness stated that on 23.3.2008 the deceased had not returned to his house. They presumed that he may have gone to Jaipur. This witness stated that on the next day, i.e. on 24.3.2008, they learnt that the deceased had not gone to his office. Then they went to police post. The policeman informed that in the night a dead body was found near crossing of Jonsganj and the same has been kept in mortuary of Jawahar Lal Nehru Hospital, Ajmer. Upon which, this witness went to mortuary and identified the dead body. This witness stated that the purse, mobile and motorcycle were missing. The deceased was having injury on his head along with various other injuries. This witness attested the Panchayatnama (Exhibit-P/14). This witness presented the written report (Exhibit-P/11). This witness further stated that police also prepared the site plan (Exhibit-P/13) of the spot. This witness attested the Panchayatnama and stated that the clothes of the deceased were taken into possession by the police vide memo Exhibit-P/15 and dead body was handed over to him vide memo Exhibit-P/16 for cremation. 13. Anil Gupta (P.W.5) in cross-examination stated that he learnt that police had recovered the motorcycle but police had not informed as to from where the motorcycle was recovered. This witness further stated that as per site plan (Exhibit-P/13) the spot from where dead body was recovered, was residential area and number of persons reside there. This witness further deposed that the place of occurrence was a public thorough fare and number of persons used to visit the said place. 14. Sunni (P.W.2) had attested the site plan of the place of incident as Exhibit-P/2. According to prosecution, site plan (Exhibit-P/2) was prepared at the instance of the accused Sonu @ Jun. 15. Kailash Chandra (P.W.11) is friend of the deceased Ajay Gupta. 14. Sunni (P.W.2) had attested the site plan of the place of incident as Exhibit-P/2. According to prosecution, site plan (Exhibit-P/2) was prepared at the instance of the accused Sonu @ Jun. 15. Kailash Chandra (P.W.11) is friend of the deceased Ajay Gupta. This witness stated that on 23.3.2008, they were having Holi Milan function and from the last five years, he is Secretary of Carriage Sports Club. This witness stated that the deceased Ajay Gupta was working as Welfare Inspector. This witness stated that a dinner was arranged and deceased Ajay Gupta came to attend the function. This witness stated that at 9:00 PM, the deceased left the place. 16. Sudhir Arora (P.W.13) in the court deposed that there was a Holi Milan function. The deceased Ajay Gupta had come to attend the same. This witness further stated that a dinner was arranged and deceased had left the venue on motorcycle for his house at 9:00 PM. On 24.3.2008, at about 10:00 PM, he received information that Ajay Gupta met with an incident. Anoop Gupta (P.W.12) and Madan Lal Sharma (P.W.18) have attested the inquest/Panchayatnama (Exhibit-P/14). Anoop Gupta (P.W.12) further stated that in his presence, clothes of the deceased were taken into possession by police vide memo Exhibit-P/15. 17. Prem Prakash (P.W.1) in the court stated that on 26.3.2008 at about 6:15 PM, vide arrest memo Exhibit-P/1, accused Sonu @ Jun was arrested. This witness had witnessed the arrest memo Exhibit-P/1. The arrest memo Exhibit-P/1 was also attested by Constable Ramniwas (P.W.6). 18. Constable Mahendra (P.W.7) had attested memo Exhibit-P/7 whereby on 27.5.2008, accused Anil Kumar was arrested. Rajendra Prasad (P.W.4) had attested arrest memo Exhibit-P/10, whereby on 16.4.2008, accused Pooran @ Poorniya was arrested. 19. Now, we shall notice the testimony of the formal witnesses and witnesses who had participated in the investigation while dealing with the case of each accused. The case of accused appellant Sonu @ Jun: 20. As per prosecution, the occurrence in the present had taken place on 23.3.2008, immediately after 9:00 PM, when deceased Ajay Gupta after having drinks in the Holi Milan function left carriage ground. It has come in evidence that the house of the deceased and the carriage ground are situated in the town Ajmer. After the deceased left the carriage ground on motorcycle, before he reached his house, he had died near crossing of Jonsganj. It has come in evidence that the house of the deceased and the carriage ground are situated in the town Ajmer. After the deceased left the carriage ground on motorcycle, before he reached his house, he had died near crossing of Jonsganj. The dead body of Ajay Gupta was lifted by the police and was taken to mortuary. 21. It is the case of the prosecution that vide arrest memo Exhibit-P/1 on 26.3.2008, at 6:15 PM, accused Sonu @ Jun was arrested. Arrest memo Exhibit-P/1 is prepared by Dilip Sharma (P.W.25), who was then posted as SHO, Police Station Ramganj, Ajmer. The arrest memo is witnessed by Head Constable Prem Prakash (P.W.1) and Ramniwas (P.W.6). The case of the prosecution is that immediately after the arrest of accused Sonu @ Jun, on 26.3.2008 at 6:30 PM, accused Sonu @ Jun suffered disclosure statement vide Exhibit-P/35. Disclosure statement (Exhibit-P/35) is not attested by any witness. In pursuance of disclosure statement (Exhibit-P/35), on 26.3.2008, at 7:15 PM, accused Sonu @ Jun got recovered motorcycle from the open space in front of the quarter of his brother in the Railway Colony. The case of the prosecution is that in the Railway Colony, in a railway quarter, brother of the accused was residing. Recovery memo Exhibit-P/3 whereby motorcycle was recovered, is attested by Seeta Ram (P.W.3) and Harbans Singh (not examined). 22. A bare reading of disclosure statement (Exhibit-P/35), reveals that accused Sonu @ Jun has stated that after committing murder of Ajay Gupta, he had taken the motorcycle belonging to the deceased. 23. Mr. Aladeen Khan, the learned Public Prosecutor has submitted that in the arrest memo (Exhibit-P/1), arresting officer had noted injuries on the person of Sonu @ Jun. 24. A perusal of the arrest memo (Exhibit-P/1) reveals that arresting officer had noted abrasions on the knee and left shoulder of the accused Sonu @ Jun. Curiously enough, immediately after arrest, Sonu @ Jun was not produced before any Medical Officer and no injury report was prepared. 25. Head Constable Prem Prakash (P.W.1), who had attested the arrest memo Exhibit-P/1, in the court has not uttered a single word that at the time of arrest, Sonu @ Jun was having any injuries on his person. Curiously enough, immediately after arrest, Sonu @ Jun was not produced before any Medical Officer and no injury report was prepared. 25. Head Constable Prem Prakash (P.W.1), who had attested the arrest memo Exhibit-P/1, in the court has not uttered a single word that at the time of arrest, Sonu @ Jun was having any injuries on his person. Similarly, Constable Ramniwas (P.W.6) another witness to the arrest memo Exhibit-P/1, in the court has also not said a word that accused Sonu @ Jun was having injuries on his person. 26. Arrest memo (Exhibit-P/1) is not a substantive piece of evidence. None of the attesting witness has deposed in the court that there were injuries on the person of accused Sonu @ Jun, when he was arrested. As to why Sonu @ Jun was not medico-legally examined, which is mandate of law, no explanation is forthcoming. It is incumbent for the arresting officer to get the accused medico-legally examined. Section 53 Cr.P.C. reads as under:- "Sec.53. Examination of accused by medical practitioner at the request of police officer- (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner." 27. In the present case, accused Sonu @ Jun was not got medico legally examined, therefore, evidence upon which the prosecution can rely was not gathered by the investigating agency. Therefore, mere noting of the fact in the arrest memo that accused was having injuries on his knee and left shoulder, cannot be taken as an incriminating circumstance against the accused Sonu @ Jun. 28. Therefore, mere noting of the fact in the arrest memo that accused was having injuries on his knee and left shoulder, cannot be taken as an incriminating circumstance against the accused Sonu @ Jun. 28. Now, we come to disclosure statement (Exhibit-P/35). 29. In the disclosure statement (Exhibit-P/35), made by the accused Sonu @ Jun on 26.3.2008 at 6:30 PM, immediately fifteen minutes after the arrest, at the behest of the accused it is recorded that after committing murder, he had taken away motorcycle of the deceased. We may notice that the disclosure statement (Exhibit-P/35) has not been attested by any independent witness. There is no evidence available with us, whether the said disclosure statement was made without any duress or coercion, or was made voluntarily by the accused. 30. A Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member relying upon the judgment of the Hon'ble Apex Court in Harjit Singh v. State of Punjab, A.I.R. 2002 Supreme Court 3040, held in the case of Rameshwar and Dinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No.158/2010, decided on 10.11.2014, 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. 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." 31. Furthermore, we are baffled as to how and why the accused Sonu @ Jun was arrested by the investigating agency. The occurrence had taken place on 23.3.2008, after 9:00 PM. The dead body was taken to mortuary at Jawahar Lal Nehru Hospital, Ajmer, where relations of the deceased identified the dead body on 25.3.2008. Autopsy on the dead body was conducted on 25.3.2008 at 1:20 PM. The written report (Exhibit-P/11) was submitted by Anil Gupta (P.W.5) on 26.3.2008 at 1:25 PM. The case was registered on 26.3.2008 at 1:25 PM at Police Station Ramganj. Thus, within five hours of the registration of the FIR on 26.3.2008 at 6:15 PM, accused Sonu @ Jun was arrested vide memo Exhibit-P/1 and fifteen minutes thereafter, he had suffered disclosure statement (Exhibit-P/35). It has nowhere come in the testimony of any investigating officer that they had received any secret or special information that the offence has been committed by the accused Sonu @ Jun. As to how and why accused Sonu @ Jun was arrested, no explanation is forthcoming. It is true that the investigating officer is not bound to share source of his information, but he has to state as to how he formulated the opinion that the offence has been committed by a particular accused. There must be some basis to affect the arrest of the accused. 32. Mr. Vinay Pal Yadav, the learned counsel for the appellants has submitted that in order to purported murder, which people at large believed in the city of Ajmer, hurriedly the investigating officer in his over-zeal to solve the case, affected the arrest of the present appellant Sonu @ Jun. 33. We shall grant some leave way to the investigating officer and discount this argument raised by the learned counsel for the appellant. 34. 33. We shall grant some leave way to the investigating officer and discount this argument raised by the learned counsel for the appellant. 34. As per prosecution, on 26.3.2008, at 7:15 PM, within six hours, motorcycle of the deceased was recovered from the Railway Colony, where it was parked in front of a railway quarter allotted to the brother of the accused Sonu @ Jun. 35. Constable (Driver) Ayub Khan (P.W.15) has proved on record the mechanical report (Exhibit-P/21) of the motorcycle. As per the mechanical report, front indicators of the motorcycle were broken. Similarly, left indicator of the motorcycle on the rear side was also damaged. Front light of the motorcycle was also broken. Silencer was twisted (^^fipdk gqvk ihNs ls**) , leg guard of the motorcycle has also turned. Petrol tank of the motorcycle was having a dent and scratch. Chain cover of the motorcycle was also broken. Battery cover and oil cover of the motorcycle were also broken and there were scratches and dent on the motorcycle. Left side lever of the motorcycle was having slight bend. However, motorcycle was in a working condition. 36. In the cross-examination, Ayub Khan (P.W.15) admitted that above said damages can be caused to the motorcycle due to fall or an accident. 37. The learned counsel for the appellant has referred to the site plan Exhibit-P/13, and submitted that it has come in the site plan that the motorcycle had dragged. According to the learned counsel for the appellant, it is noted in the site plan that motorcycle had dragged upto 20 feet. In the site plan (Exhibit-P/13), particulars given qua Mark 'X', are noted as under:- ^^?kVuk LFky lM+d ds nf{k.k fdukjs ls mrj dh rjQ lM+d ij rktk Ldzsp 1 ls 2 QqV dh nwjh rd cus gq;s gS ftudh yEckbZ iwoZ fn'kk ls if'pe fn'kk dh rjQ 20 QhV gSA ftudks Ldzspst dks ekdZ 1 ls 2 rd uD'kk ekSdk esa fn[kk;k x;k gSA** 38. The learned counsel for the appellant has also referred to the following portion from the cross-examination of Dilip Sharma (P.W.25), investigating officer, as under:- ^^uD'kk ekSdk ih&13 esa d ls [k LFkku ij yxHkx chl QqV yEck lM+d ij Ldzsp gksuk fn[kk;k gqvk gSA ;g dguk lgh gS fd uD'kk ekSdk ih&13 esa d LFkku ds ikl fLFkr ,Dl LFkku ij e`rd dk 'ko iM+k gqvk FkkA ;g dguk lgh gS fd ih&13 uD'kk ekSdk esa vkilh >xM+s ds dksbZ vkykekr ugha n'kkZ;s x;s gS vtw[kn dgk ?kVuk LFky iDdh lM+d gS] blfy;s vkilh >xM+s ds vykekr n'kkZ ikuk laHko ugha FkkA ;g lgh gS fd ?kVuk LFky okyh lM+d ij 24 ?kaVs vkokxeu cuk jgrk gSA** 39. The learned counsel for the appellant by referring to the condition of the motorcycle as noticed in the mechanical report (Exhibit-P/21), and site plan (Exhibit-P/13), has submitted that it is a case of an accident. The learned counsel for the appellants has submitted that the deceased Ajay Gupta, after taking drinks and dinner was returning to his house when motorcycle slipped and he fell and suffered the injuries. 40. The learned counsel for the appellants has canvassed that even if recovery of motorcycle is assumed to have been effected from the appellant, it cannot be ruled out that the appellant Sonu @ Jun took away the motorcycle which was lying fallen near the spot of accident. The learned counsel for the appellant has submitted that from the mere recovery of motorcycle we cannot assume that the murder has been committed by the appellant Sonu @ Jun. 41. Three Judges Bench of Supreme Court in Prabhoo v. State of Uttar Pradesh, Air 1963 SC 1113 , held as under:- "They were incriminating statements made to a police officer and were hit by sections 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of section 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within meaning of section 27. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within meaning of section 27. Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovery may be proved. In Pulukuri Kotayya v. King Emperor [(1947) L.R. 74 I.A. 65] the Privy Council considered the true interpretation of section 27 and said: "It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A.', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant." (p. 77, of Ind App) : (at p. 70 of AIR) (Emphasis supplied). We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained axe and some blood stained clothes. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his. (Emphasis supplied)" 42. Therefore, the portion of the disclosure statement (Exhibit-P/35) where accused stated that after committing murder he had taken away the motorcycle, cannot be read by us. Therefore, we have to reject the argument raised by the learned Public Prosecutor that the disclosure statement (Exhibit-P/35) be read as a confession of the accused. 43. The only fact, (if we accept the disclosure statement and recovery) which can be construed against the accused Sonu @ Jun is that he led to the recovery of the motorcycle. 44. Even if we revert to the illustration (a) to the Section 114 of the Indian Evidence Act, we cannot infer that the appellant Sonu @ Jun has committed the murder of the deceased Ajay Gupta. 45. In Sanwat Khan & Anr. v. State of Rajasthan, AIR 1956 SC 54 , Supreme Court held as under:- "Here, there is no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our judgment, Beaumont, C. J., and Sen J. in -- 'Bhikha Gobar v. Emperor', AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder. There must be some further material to connect the accused with the murder in order to hold him guilty of that offence. Our attention was drawn to a number of decisions which have been summed up in a Bench decision of the Allahabad High Court in -- 'State v. Shankar Prasad, in some of which a presumption was drawn of guilt from the circumstance of possession of stolen articles soon after a murder. Our attention was drawn to a number of decisions which have been summed up in a Bench decision of the Allahabad High Court in -- 'State v. Shankar Prasad, in some of which a presumption was drawn of guilt from the circumstance of possession of stolen articles soon after a murder. We have examined these cases and it appears to us that each one of these decisions was given on the evidence and circumstances established in that, particular case, and no general proposition of law can be deduced from them. In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof. 7. For the reasons given above we cannot maintain the conviction of the appellants under Section 302, I.P.C. and we, therefore, acquit them of that offence. It is, however, clear that both the appellants either took part in the theft or received the stolen property with the knowledge that it had been stolen. The appellants were charged with having committed theft in a building armed with certain weapons. They can thus be convicted for having committed theft in a dwelling house." 46. Therefore, mere recovery of motorcycle from the appellant will not lead to the conclusion that the murder was committed by the appellant Sonu @ Jun. 47. The learned counsel for the appellants has urged that after search was carried, motorcycle was found lying parked in railway colony. The accused Sonu @ Jun being residing near the house to the place where motorcycle was parked, was arrested and tortured and this according to counsel suggests injuries noticed in the arrest memo and non-examination of the accused by the medical officer. The learned counsel for the appellant has submitted that the investigating agency wanted to suppress the injuries on the person of accused Sonu @ Jun by not holding any medical examination. 48. The learned counsel for the appellant has submitted that the investigating agency wanted to suppress the injuries on the person of accused Sonu @ Jun by not holding any medical examination. 48. For the reasons stated above, on the appraisal of the evidence, we also find that the disclosure statement (Exhibit-P/35) leading to the recovery of the motorcycle vide recovery memo Exhibit-P/3, is not sufficient for us to formulate a definite opinion that the same are not padding. We have already stated that no reasons is forthcoming as to how and why within five hours of registration of the case, the accused Sonu @ Jun was arrested, as no basis to arrest the accused has been shared with the court. Furthermore, the disclosure statement (Exhibit-P/35), is not witnessed by any independent person and lastly, the recovery has been effected from an open and accessible place in a railway colony. Thus, it cannot be said that on the basis of disclosure statement made by the accused, recovery of motorcycle was effected. The case of Pooran @ Poorniya: 49. The accused Pooran @ Poorniya was arrested vide memo Exhibit-P/10 on 16.4.2008. As per the prosecution case, Pooran @ Poorniya on 16.4.2008 at 8:45 PM suffered disclosure statement (Exhibit-P/26) that he can get recovered one purse containing ATM Cards and I.D. Cards from his house. However, the disclosure statement (Exhibit-P/26) is totally silent regarding involvement of accused Pooran @ Poorniya in the crime. 50. The case of the prosecution is that on the basis of disclosure statement (Exhibit-P/26), accused Pooran @ Poorniya on 16.4.2008 got recovered one purse containing two ATM Cards and I.D. Card in presence of Rajendra Prasad (P.W.4) and Constable Prahlad Mal (P.W.24). Further the case of the prosecution is that ASI Nazir Ahmed (P.W.14) being posted as ASI at Police Station Nasirabad, on 24.3.2008 at 8:00 AM came to the hospital at Nasirabad. On the said date and time, Pooran @ Poorniya was lying admitted in the hospital. On inquiry accused Pooran @ Poorniya has stated that he was driving his own motorcycle which had slipped and he suffered injuries. Nazir Ahmed (P.W.14) had neither taken into possession the injury report nor medico-legal examination of Pooran @ Poorniya into possession. This witness had not effected the arrest of the accused Pooran @ Poorniya. On inquiry accused Pooran @ Poorniya has stated that he was driving his own motorcycle which had slipped and he suffered injuries. Nazir Ahmed (P.W.14) had neither taken into possession the injury report nor medico-legal examination of Pooran @ Poorniya into possession. This witness had not effected the arrest of the accused Pooran @ Poorniya. In cross-examination, this witness admitted that he had not examined the motorcycle of the accused Pooran @ Poorniya and he made not entry to this effect in the Daily Diary. 51. On 24.3.2008, the accused Pooran @ Poorniya was admitted in the hospital. He was not arrested till 16.4.2008. We also find that the disclosure statement (Exhibit-P/26) is not attested by any witness, what to say by independent witness. The reasons stated by us to disbelieve the disclosure statement (Exhibit-P/35) suffered by appellant Sonu @ Jun, are also valid qua the present appellant Pooran @ Poorniya. 52. The prosecuting agency has believed that the disclosure statement suffered by accused Anil Kumar that he had picked up a mobile lying near the place of occurrence. In the disclosure statement (Exhibit-P/26) made by Pooran @ Poorniya nothing has been stated that after commission of any offence, purse was picked up by the accused. We find that no reason is forthcoming as to why from the disclosure statement (Exhibit-P/26) made by the accused it was inferred by the investigating officer that the appellant Pooran @ Poorniya committed the offence of murder. At the most, like co-accused Anil Kumar, Pooran @ Poorniya may have also picked up purse lying near the place of occurrence. 53. We may notice here that Sunil Garg (P.W.10) the landlord of accused Pooran @ Poorniya has turned hostile to the prosecution. He has denied that any recovery has been effected from the house of Pooran @ Poorniya. 54. On the basis of disclosure statement (Exhibit-P/26), leading to recovery of purse containing I.D. Card and ATM Cards of the deceased, by drawing presumption under Section 114 of the Indian Evidence Act, reverting to illustration (a) we can only hold that Pooran @ Poorniya was recipient of stolen property, as he has not furnished any explanation which is bound to furnish as per the law. However, mere recovery of purse, ATM and ID Card from accused Pooran @ Poorniya, itself is not sufficient to draw a conclusion that he has committed murder of deceased. However, mere recovery of purse, ATM and ID Card from accused Pooran @ Poorniya, itself is not sufficient to draw a conclusion that he has committed murder of deceased. The case of the accused Anil Kumar: 55. The accused appellant Anil Kumar in his disclosure statement (Exhibit-P/27) had stated that he had picked up mobile phone, which was lying fallen near crossing of Jonsganj. 56. No identification of the mobile has been carried by the investigating agency. Two sisters of accused Anil Kumar, namely Smt. Mamta (P.W.8) and Smt. Rajni (P.W.9), have turned hostile to the prosecution. 57. Anil Gupta (P.W.5) in the court stated that he had not seen the mobile of his brother in his own hands. This witness has further stated that neither the mobile nor the purse nor ATM Cards or Election I.D. Card, were got identified from him. This witness stated as under:- ^^eSaus esjs HkkbZ dk eksckbZy Lo;a us vius gkFk esa ysdj ugha ns[kkA esjs ppsjs HkkbZ ds ikl mDr eksckby uEcj 9829793733 dc ls Fkk] eSa fuf'pr ugha crk ldrk vt[wkn dgk eSa rks ges'kk blh uEcj ij buls ckr djrk FkkA ,Vh,e dkMZ vkSj dszfMV dkMZ ds uEcj eq>s irk ugha gSA esjs ls esjs HkkbZ ds ,Vh,e dkMZ] ernkrk igpku i=] dzsfMV dkMZ dh igpku esjs ls eftLV~sV lkgc ds lkeus ugha djok;hA ;g ckr lgh gS fd ilZ] eksckbZy] ,Vh,e dkMZ] dzsfMV dkMZ] ernkrk igpku&i= vkt eq>s U;k;ky; esa ugha fn[kk;s x;s gSA** 58. Thus, prosecution has failed to prove and establish that mobile recovered at instance of Anil Kumar accused was of the deceased. 59. Consequently, we accept all the three appeals filed on behalf of the appellants Sonu @ Jun, Pooran @ Poorniya and Anil Kumar by setting aside the conviction pronounced and sentence awarded upon them by the trial court. They are acquitted of the charges by extending benefit of doubt by way of abundant caution. 60. In view of above, we order that the appellants Sonu @ Jun, Pooran @ Poorniya and Anil Kumar be released forthwith, if in custody and not required in any other case. 61. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants Sonu @ Jun, Pooran @ Poorniya and Anil Kumar are directed to forthwith furnish a personal bond in the sum of Rs. 61. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants Sonu @ Jun, Pooran @ Poorniya and Anil Kumar are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and surety bond of 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 this judgment or on grant of leave, the appellants on receipt of notice there of, shall appear before the Supreme Court.