ORDER 1. Three appeals have been filed against the common judgment dated 17.01.2001 passed in S.T. No. 175/2000. Criminal Appeal No. 481/2001 filed by two accused persons Nanbhai and Ramsuphal @ Bhukdu has become infructuous because they have completed the jail sentence and they have withdrawn their appeals. Criminal Appeals No. 288/2001 and 377/2001 still survive. Criminal Appeal No. 288/2001 has been filed by Raju @ Tarkeshwar and Criminal Appeal No. 377/2001 has been filed by Mole Yadav. We would discuss the evidence in regard to two accused persons i.e. Raju @ Tarkeshwar and Mole Yadav. 2. Five accused persons were prosecuted for commission of offence punishable under section 396 of IPC. The trial Court held all the accused persons guilty for commission of offence punishable under section 396 of IPC and awarded life imprisonment along with fine of Rs.500/- each appellant. 3. Prosecution case in brief is that on 14.5.2000, Rajesh Pandey, who was working as Salesman in a country made liquor shop at Amlai Paper Mills, was coming along with his assistant Banwari Lal Tripathi to Singhpur on a motorbike. He had an amount of Rs.22,000/- in a bag with him. The aforesaid amount had to be deposited in the bank on the next date. When they reached near Besaha river near Dhanpura village, they noticed that Rammitra was standing there. He had a stone with him. Nanbhai and Sukdu were also standing there. They had knife with them. Rammitra abused them and directed to stop the motorbike. Thereafter, Rajesh Pandey stopped the motorbike. Nanbhai made a demand of money for drinking liquor. Banwari had given him Rs.30/- to drink liquor. Nanbhai was still abusing them. Then Rajesh had also given some money to Nanbhai. Thereafter, Sufal inquired from him that what was in the bag. He did not tell Sufal about the bag. Then Nanbhai inflicted a blow on Banwari by knife, which landed on his right palm. Thereafter, Rammitra, Nanbhai and Sukdu entangled with Rajesh Pandey. When Banwari Lal tried to pacify them, Nanbhai inflicted a blow of knife on the chest of Banwari Lal. Nanbhai, Sukdu and Ramsufal had beaten the deceased by knives. Thereafter, Rajesh told Banwari to run away. When Banwari was running, two persons who were standing near a tree had thrown stones at him, however, he did not receive any injury. When Banwari Lal tried to pacify them, Nanbhai inflicted a blow of knife on the chest of Banwari Lal. Nanbhai, Sukdu and Ramsufal had beaten the deceased by knives. Thereafter, Rajesh told Banwari to run away. When Banwari was running, two persons who were standing near a tree had thrown stones at him, however, he did not receive any injury. Banwari reached Dhanpura village and narrated the incident to Ambika Prasad and other persons. They went to the spot but by that time, accused persons had run away from the spot. Rs. 22,000/-, which were kept in the bag, were not in the bag. Rajesh Pandey was lying on the earth. Ambika Prasad and Banwari had taken Rajesh Pandey to hospital. At that time, hospital was closed. Subsequently, brothers of Rajesh Pandey came there. They had taken Rajesh Pandey in a jeep to Dr. A.P. Pathak, who declared him dead. Thereafter, information was sent to the police station and police registered a merg and registered the offence against the accused persons. Police conducted investigation and filed charge-sheet against five accused persons. Present appellants and other accused persons abjured their guilt. The Trial Court held the appellants guilty for commission of offence punishable under section 396 of IPC and awarded sentence as mentioned above in the judgment. 4. Learned counsel appearing on behalf of the appellants have contended that conviction of the appellants is based on circumstantial evidence. The trial Court held the appellants guilty on the basis of seizure of articles, currency notes and some cloths. However, on the basis of the aforesaid evidence, the appellants could not be held guilty and the offence against the appellants could not be proved beyond reasonable doubt. Contrary to this, learned counsel for the State has submitted that there is recovery and seizure of looted property from the possession of the appellants. Cloths of the appellants were also seized, on which blood stains were found. The appellants did not offer any explanation about the blood stains on their cloths in their statement under section 313 of CrPC recorded before the trial Court, which shows the presence of the appellants on the spot. The trial Court has rightly held the appellants guilty for commission of offence and awarded proper sentence. 5. PW-1 Banwari Lal Tripathi is the injured eye witness. He was accompanying the deceased. The trial Court has rightly held the appellants guilty for commission of offence and awarded proper sentence. 5. PW-1 Banwari Lal Tripathi is the injured eye witness. He was accompanying the deceased. He deposed that he and deceased Rajesh Pandey were coming to Singhpur on a motorbike. Rajesh Pandey was driving the motorbike. Rajesh Pandey had a bag containing Rs.22,000/- and other articles. When they reached outside of Dhanpura village near Baisaha river, accused Rammitra was standing near a tree. He had a stone with him. Nanbhai and Supulu were also standing there. They had knives with them. Rammitra abused Rajesh Pandey and directed him to stop the vehicle. Thereafter, Rajesh Pandey stopped the motorbike. Nanbhai made a demand of Rs.200/-. I gave him Rs. 30/- from my pocket. He was still abusing us. Thereafter, Rajesh Pandey had given some more money to Nanbhai. Supulu asked that what was in the bag. When we did not tell him about the bag, he inflicted a blow on the palm of my right hand by knife. Rajesh Pandey had taken the bag from me. Thereafter, Rammitra, Nanbhai and Supulu entangled with Rajesh Pandey. I tried to save him. Nanbhai inflicted a blow of knife at my chest. Nanbhai and Supulu also inflicted blows by knife on Rajesh Pandey. Rajesh Pandey told me to run away. When I was running away, two persons came from the precinct and they had thrown stones at me. However, stones did not hit me. Thereafter, I went to the village. 6. It is alleged that the present appellants are the persons who were standing by the side of the boundary, who had thrown stones at (PW1). (PW1) in para 19 of his cross examination, admitted that no identification parade was conducted by the police of the accused persons because all the persons were known to me prior to the incident. He further admitted in his evidence that these two persons who were hiding in the boundary, who had thrown stones at me, were not known to me. I did not tell the names of these two accused persons, who were hiding behind the precinct. 7. (PW4) Ambika Prasad Mishra deposed that at around 9 O’clock in the night I was present near Flour Mill of Gupta. I did not tell the names of these two accused persons, who were hiding behind the precinct. 7. (PW4) Ambika Prasad Mishra deposed that at around 9 O’clock in the night I was present near Flour Mill of Gupta. Banwari Lal came there and he told me that 4-5 persons had been beating Rajesh Pandey and they had looted the money, which was kept in the bag. He further deposed that I went on the spot along with Banwari Lal on a motorbike. On the way, Banwari Lal told me that Rammitra, Supulu and Nanbhai had committed marpeet and they had looted the money. 8. (PW5) Pushpendra Pandey, another witness, deposed that at 10 O’clock Banwari Lal came to my farm house. There were injuries on his hand and chest and he told me that Nanbhai, Rammitra and other two persons had been beating the deceased and they had taken away Rs.22,000/-. Thereafter, we went on the spot and taken the deceased to the hospital. Thereafter, report of the incident was lodged. 9. (PW7) Shrikant Pandey is the witness of seizure. He deposed that before him police inquired from appellant Raju and he had given information that he had concealed Rs.4,725/- in the chaff of grain at his house. He further informed that he had thrown the stone, which was used in the incident, in a field. His memorandum is Ex.-P17 and I signed the same. The police also inquired Mole Yadav about the money and he informed the police that he had concealed Rs. 4050/- in the badi of his house in a pit and his pant, shirt and vest (baniyan) were also seized. His memorandum is Ex.-P18 and I signed the same. From the house of Raju Pandit, an amount of Rs.4725/- was seized vide seizure memo Ex.P-21 and I signed the same. From the house of Mole Yadav, an amount of Rs.4050/-, which was kept in a steel box, and his shirt, full pant and vest of Raju were seized vide seizure memo Ex.-P22. 10. The cloths recovered from both the appellants Raju and Mole Yadav were sent to Forensic Science Laboratory for chemical examination. As per the report of Forensic Expert Ex.-P56A, blood stains were found on Article F and G. These articles are shirt and full pant seized from accused Mole Yadav. 10. The cloths recovered from both the appellants Raju and Mole Yadav were sent to Forensic Science Laboratory for chemical examination. As per the report of Forensic Expert Ex.-P56A, blood stains were found on Article F and G. These articles are shirt and full pant seized from accused Mole Yadav. However, blood stains have not been found on Article R (full pant), S (stone) and T (nails) seized from appellant Raju Pandit. 11. This is the evidence on which the trial Court placed reliance and convicted the appellants for commission of offence punishable under section 396 of IPC. The question is that whether the evidence is sufficient to convict the appellants or not. (PW1) Banwari Lal did not depose that he identified the present appellants. He specifically deposed that he could not identify the present appellants. No identification parade was conducted by the police. Other witnesses, as discussed above, also deposed that (PW1) did not tell them about the names of the present appellants. (PW1) in Para 19 of his cross-examination specifically deposed that – ^^tks nks O;fDr esM esa Nqis Fks vkSj ckn esa esjs Åij iRFkj Qsads Fks eSa mUgsa ugha igpku ik;k FkkAÞ 12. The apex Court in the case of Satish Nirankari v. State of Rajasthan [ (2017)8 SCC 497 ] has held as under in regard to circumstantial evidence : “29. It is now well established, by catena of judgements of this Court, that circumstantial evidence of the following character needs to be fully established : (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. Crl.A. No. 1074 of 2007 (iii) All the facts established should be consistent only with the hypothesis of guilt. (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State vs. Dr. Ravindra); Chandrakant vs. State of Gujarat; It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person. 30. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person. 30. Following tests laid down in Padala Veera Reddy v. State of A.P also need to be kept in mind : “10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 31. Sir Alfred Wills in his book Wills’ Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : “(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced with the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 13. The Hon’ble apex Court further in the case of Rajkumar Singh @ Raju @ Batya v. State of Rajasthan [ AIR 2013 SC 3150 ], has held as under in regard to circumstantial evidence : “17. The Hon’ble apex Court further in the case of Rajkumar Singh @ Raju @ Batya v. State of Rajasthan [ AIR 2013 SC 3150 ], has held as under in regard to circumstantial evidence : “17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ‘may be’ proved and ‘will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ‘may be’ and ‘must be’ is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be’ true and ‘must be’ true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar and another v. State of M.P., [ AIR 1952 SC 343 ]; Shivaji Sahabrao Bobade and another v. State of Mahrashtra, [ AIR 1973 SC 2622 ]; Sharad Birdhichand Sarda v. State of Maharashtra, [ AIR 1984 SC 1622 ]; Subhash Chand v. State of Rajasthan, [ (2002)1 SCC 702 ]; Ashish Batham v. State of M.P., [ AIR 2002 SC 3206 ]; Narendra Singh and another v. State of M.P., [ AIR 2004 SC 3249 ]; State through CBI v. Mahender Singh Dahiya, [ AIR 2011 SC 1017 ]; and Ramesh Harijan v. State of U.P., [ AIR 2012 SC 1979 ]”. 14. The Hon’ble apex Court in the case of State of Rajasthan v. Raja Ram, [ (2003)8 SCC 180 ] has held as under in regard to blood stains on the cloths which were seized from the possession of accused : “21. Coming to the bloodstains on the cloth which were allegedly seized on being pointed out by the accused, the forensic laboratory report indicated that there were blots of human blood on the shirts and trousers of the accused. There was no effort to find out the blood group. In fact, the High Court noted this position and observed that presence of (PW4) at the time of recovery is doubtful as he has been found to be an unreliable witness. It was observed that even if it is accepted that there was existence of blood, this circumstance is not such from which it can be found that the accused was perpetrator of the crime. In the aforesaid report (Ex.-61) it was clearly stated that the blood group of blood found on the clothes could not be determined. Neither the blood group of the deceased nor that of the accused was determined. In that background, the High Court held that the possibility of the blood being that of the accused cannot be ruled out. In view of the findings recorded by the High Court about the non-acceptability by evidence relating to alleged extra judicial confession, the conclusions of the High Court cannot be said to be one which are unsupportable. We decline to interfere in the appeals,and the same are dismissed.” 15. In view of the findings recorded by the High Court about the non-acceptability by evidence relating to alleged extra judicial confession, the conclusions of the High Court cannot be said to be one which are unsupportable. We decline to interfere in the appeals,and the same are dismissed.” 15. The Hon’ble apex Court in another case of Raja Alias Rajinder v. State of Haryana [ (2015)11 SCC 43 ], has held as under in regard to blood stains on a weapon i.e. knife and the circumstance where blood group could not be ascertained : “19. Another circumstance which has been taken note of by the High Court is that the blood stained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory. The report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife. True it is, there has been no matching of the blood group. However, that would not make a difference in the facts of the present case. The accused has not offered any explanation how the human blood was found on the clothes and the knife. In this regard, a passage from John Pandian v. State [ (2010)14 SCC 129 ], is worth reproducing : “The discovery appears to be credible. It has been accepted by both the Courts below and we find no reason to discard it. This is apart [pic]from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.” 16. The Hon’ble apex Court further in the case of State of M.P. v. Nisar [ (2007)5 SCC 658 ], has held as under in regard to blood stains where blood group could not be ascertained : “9. … The chemical examiner in his report Ext.P-37 had found that the axe was stained with human blood. Curiously, the blood group was not ascertained. It was, therefore, not possible to conclude that the axe was used for killing the two deceased persons.” 17. … The chemical examiner in his report Ext.P-37 had found that the axe was stained with human blood. Curiously, the blood group was not ascertained. It was, therefore, not possible to conclude that the axe was used for killing the two deceased persons.” 17. The law is that under certain circumstances if blood stains were found on the weapon, although there is no blood grouping, it can be one incriminating circumstance. However, the conviction cannot be based on the sole circumstance of human blood on the cloths when there is no blood group matching. 18. Another feature is recovery of money from the appellants. The money recovered from the appellants are currency notes. There is no specific mark on the notes from which it could be ascertained that those are the same notes which were looted from the deceased. The appellants did not offer any explanation in regard to recovery. The Hon’ble apex Court in the case of Manu Sao v. State of Bihar [ (2010)12 SCC 310 ], has held as under in regard to statement of the accused under section 313 of CrPC: “15. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under section 313 of the Code as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit Ayodhya Prasad Goel v State of Bombay [ AIR 1953 SC 247 ], the Court held as under : “3. ...As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused’s statement and excluded the exculpatory part does not seem to be correct. The statement under section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. The statement under section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.” 16. On similar lines reference can be made in quite a recent judgment of this Court in the case of Ajay Singh v. State of Maharashtra, [ (2007)12 SCC 341 ] where the Court held as under : “11. So far as the prosecution case that kerosene was found on the accused’s dress is concerned, it is to be noted that no question in this regard was put to the accused while he was examined under section 313 of the Code. 12. The purpose of section 313 of the Code is set out in its opening words - “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”. In Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 it has been laid down by Bose, J. (AIR p. 469, para 8) that the statements of the accused persons recorded under section 313 of the Code “are among the most important 10 matters to be considered at the trial”. It was pointed out that : “8. ...The statements of the accused recorded by the committing Magistrates and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box [and that] they have to be received in evidence and treated as evidence and be duly considered at the trial.” This position remains unaltered even after the insertion of section 315 in the Code and any statement under section 313 has to be considered in the same way as if section 315 is not there. 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.” 17. The statement made by the accused is capable of being used in the trial though to a limited extent. But the law also places an obligation upon the Court to take into consideration the stand of the accused in his statement and consider the same objectively and in its entirety. This principle of law has been stated by this Court in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat [ AIR 1953 SC 468 ].” 19. The principle of law is that the statement made under section 313 of CrPC of an accused is not a substantive piece of evidence. In the present case, it is a fact that the accused appellants did not offer explanation about the recovery of money. However, on this ground it cannot be held that the money which was recovered from the possession of the accused appellants was the same money which was looted from the bag of the deceased. 20. Another peculiar feature of the present case is that (PW1), who is the sole eye witness of the incident, in his evidence specifically deposed that when he and the deceased were riding on the motorbike and they reached near the village they had seen three accused persons i.e. Rammitra, Nanbhai and Ramsufal, were standing there. (PW4) attributed the act to all these three accused persons and deposed that these accused persons had looted the property and they had inflicted injuries to (PW1) and the deceased. He did not mention the presence of the present appellants on the place of incident. He deposed that when the deceased told him to run away and he was about to run away, he had noticed that the present appellants were standing beside the precinct and they had pelted stones at him, which did not hit him. This is the evidence as deposed by (PW4). (PW4) did not identify the present appellants that these are the persons who were present at the time of incident. Neither any identification parade was conducted. This is the evidence as deposed by (PW4). (PW4) did not identify the present appellants that these are the persons who were present at the time of incident. Neither any identification parade was conducted. There is evidence of recovery of money and cloths which contained blood stains, however, no blood stain was found on the cloths which were recovered from accused Raju Pandit. In such circumstances, in our opinion, on the basis of recovery of money and blood stained cloths from another accused Mole Yadav on which there was no blood grouping is not sufficient to hold the appellants guilty for commission of offence punishable under section 396 of IPC. 21. In view of the peculiar evidence on record and the facts of the case, in our opinion, the evidence led by the prosecution is not sufficient to hold the appellants guilty for commission of offence beyond reasonable doubt. It is rather unfortunate that in the present case, the prosecution did not conduct identification parade. Consequently, both the appeals filed by the appellants are hereby allowed. Both the appellants are acquitted from the offence. The impugned judgment and sentence passed by the trial Court is hereby set aside. They are on bail. Their bail bonds are hereby discharged.