JUDGMENT : Shree Chandrashekhar, J. The convicts, namely, Indrajit Sinha @ Vicky, Rajesh Kashmi @ Rajesh Reshmi and Rabish @ Shahzada Khan have challenged the judgment of conviction under sections 394, 411 and 302/34 IPC and the sentence inflicted upon them in S.T. Case No. 154/07 by the learned 1st Additional District & Sessions Judge, Jamshedpur, Singhbhum (East). 2. In Cr. Appeal (D.B.) No. 295 of 2010, Indrajit Sinha @ Vicky and Rajesh Kashmi @ Rajesh Reshmi are the appellants and in Cr. Appeal (D.B.) No. 166 of 2010, Rabish @ Shahzada Khan is the appellant. 3. The appellants have been sentenced to RI for life under section 302/34 IPC, RI for Ten years under section 394 IPC and RI for Two years under section 411 IPC. 4. On 21.11.2006, at about 13:30 hrs., a written report was submitted by Kishore Sinha, on the basis of which Telco P.S. Case No. 275/06 was registered under section 394/302 IPC against unknown. During the course of investigation, Aman Verma and Vikash Kumar @ Bittu, the tenants under the informant, disclosed that on the previous night the above-named accused persons had approached them and asked for bed and blanket for sleeping on the attic of the house. On the basis of the information provided by them raids were conducted, the accused persons were arrested, confessional statement of Indrajit Sinha and Rajesh Kashmi @ Rajesh Reshmi were recorded and cash and other looted articles were recovered from their possession and from the places indicated by them. They were put on trial to face the charge under sections 394, 411 and 302/34 IPC. 5. During the trial, the prosecution has examined sixteen witnesses; the informant is P.W. 8 and the tenants, namely, Aman Verma and Vikash Kumar were examined as P.W. 4 and P.W. 5 respectively. The investigating officer of this case, namely, Santosh Kumar is P.W. 14 and the Officer-in-Charge of Sidhgora Police Station, namely, Sakaldeo Ram who was part of the raiding team is P.W. 12. 6. The prosecution has tendered in evidence the written report, the inquest report and the post-mortem report. P.W. 3 and P.W. 6 have proved the seizure list prepared at the place of occurrence which has been marked as Ext.-1; Devendra Prasad Sinha-P.W. 6 is the brother of the deceased who has proved his signature on the seizure list. 6. The prosecution has tendered in evidence the written report, the inquest report and the post-mortem report. P.W. 3 and P.W. 6 have proved the seizure list prepared at the place of occurrence which has been marked as Ext.-1; Devendra Prasad Sinha-P.W. 6 is the brother of the deceased who has proved his signature on the seizure list. The informant has proved TI chart which has been marked as Ext.-1/4. Rakesh Kumar Srivastava- P.W.9 is the seizure memo witness of recovery of a blood-stained knife which was marked as Ext.-1/5. Kailash Kumar has put his signature on seizure lists of the articles recovered from Shahzada Khan and Rajesh Kashmi which have been marked as Ext.- 1/6, Ext.-1/7 and Ext.1/8. Birju Verma- P.W. 11 is also a seizure list witness and his signature has been marked as Ext.-1/9. Another seizure list witness is P.W. 12 who has evidenced the recovery of the looted articles from Indrajit Sinha, Shahzada Khan and Rajesh Kashmi. His signatures on the seizure lists have been marked as Ext.-3, Ext.-3/1, Ext.-3/2, Ext.-3/3 and Ext.-3/4. Amit Kumar- P.W. 13 has proved his signature on the seizure list which has been prepared on recovery of looted articles from the possession of Shahzada Khan. The investigating officer- P.W.14 has proved the seizure of a blood-stained knife which was marked as Ext.3/5. 7. Dr. Lallan Chaudhary- P.W.15, who has conducted the post-mortem examination, has found the following injuries on Bimla Sinha: “(i) Ligature mark encircling the upper most part of neck with 0.5 c.m. width. (ii) Incised wound 4.6 c.m. x 1.5 c.m. x muscle deep over most part of the neck in front. (iii) Incised wound 6 c.m. x 2 c.m. x vocal cord deep over front and middle part of the neck. (iv) Incised wound 2 c.m. x 0.2 c.m. x 0,25 c.m. over the right side of the neck. (v) Incised wound 2 c.m. x 0.5 c.m. x 0.25 c.m. over frontal lower part of neck. (vi) Incised wound 3.5. c.m. x 2 c.m.x 2 c.m. over upper part of the left side neck. (vii) Small abrasion 3 in numbers over just below left ear. (viii) Abrasion 1.5 c.m. x 1 c.m. over left side of the neck near mastoid region.” 8. (vi) Incised wound 3.5. c.m. x 2 c.m.x 2 c.m. over upper part of the left side neck. (vii) Small abrasion 3 in numbers over just below left ear. (viii) Abrasion 1.5 c.m. x 1 c.m. over left side of the neck near mastoid region.” 8. In the opinion of the Doctor, the incised wounds found on Bimla Sinha were caused by sharp-edged object and the contusions and abrasions were caused by hard and blunt object. According to him, the cause of death was throttling, however, he has stated that haemorrhage is also sufficient to cause death in the ordinary course. Death was caused between 24-30 hrs. from the post-mortem examination; post-mortem examination was conducted on 22.11.2006 at 12:30 p.m. 9. The written report of Kishore Kumar Sinha is based on the information given to him by the son of a neighbour who stayed in Quarter No.58/8. In his fardbeyan, the informant has stated that in the morning of 24.11.2006 he had left for his duty at TELCON where he was working as a Fitter. His son had also left for his school at 7:45 a.m. and when his son came back home at 12:30 p.m. he found the door of his house open and his mother lying on her bed in the other room. He therefore went to Quarter No.6 and Quarter No.7 to call the neighbours to see his mother. In the meantime, he was informed by the son of a neighbour about the incident and on receiving information when the informant came home he found his wife murdered. He has also noticed that jewelleries and cash were taken away from his almirah. 10. In the meantime, he was informed by the son of a neighbour about the incident and on receiving information when the informant came home he found his wife murdered. He has also noticed that jewelleries and cash were taken away from his almirah. 10. On the basis of the evidences laid before him, the learned Sessions Judge has found the following incriminating circumstances relied on by the prosecution against the appellants sufficient to hold that the appellants have committed the offence under sections 394, 411 and 302/34 IPC: (i) the accused persons were seen by P.W.3 and P.W. 4 in the night of 20.11.2006; (ii) P.W. 4 and P.W. 5 have provided bed and blanket to the accused persons who slept on the roof of the house; (iii) in the morning the accused persons were found absconding; (iv) the accused persons, namely, Indrajit Sinha and Rajesh Kashmi have given their confessional statement to the police; (v) the crime weapon was recovered pursuant to the confessional statement of the accused from a lonely place; (vi) on their disclosure and pointing out cash and the looted articles were recovered; and (vii) the looted articles were identified by the informant in TIP. 11. The prosecution has set up a case against the appellants that they have committed murder of Bimla Sinha and looted cash and jewellery from her house. When they were arrested the confessional statement of Indrajit Sinha and Rajesh Kashmi @ Rajesh Reshmi were recorded and they have led the police to the place where they had concealed the crime weapon and the looted articles. According to the prosecution, during TIP the informant has identified the articles as those which were looted by the appellants from his house. On such evidence, if proved by cogent, reliable and trustworthy evidence, conviction of an accused can be recorded provided the chain of circumstances is so complete that no reasonable doubt on the complicity of the accused arises and the only conclusion which may be drawn from the proved circumstances is that it was the accused and the accused alone who has committed the crime. However, in a catena of judgments the Supreme Court has cautioned that in a case based on circumstantial evidence and recovery pursuant to disclosure of an accused the prosecution’s evidence must be examined with care and caution. 12. The law on circumstantial evidence is well-settled. However, in a catena of judgments the Supreme Court has cautioned that in a case based on circumstantial evidence and recovery pursuant to disclosure of an accused the prosecution’s evidence must be examined with care and caution. 12. The law on circumstantial evidence is well-settled. In “Navaneethakrishnan v. The State BY INSPECTOR OF POLICE” reported in (2018) 16 SCC 161 , the Supreme Court has held that each and every incriminating circumstance sought to be relied on by the prosecution against the accused must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of circumstance from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt of the accused is possible. It is also well-settled that motive in a case solely founded on circumstantial evidence provides an important link in the chain of circumstances. The five golden principles, which were laid down by the Supreme Court in “Sharad Birdhichand Sarda Vs. State of Maharashtra” reported in (1984) 4 SCC 116 , lay down that a case can be said to be proved only when there is certain and explicit evidence and this requirement in law is applicable in a case based on the circumstantial evidence. Plainly speaking, merely on suspicion howsoever grave it may be conviction of an accused cannot be recorded; suspicion cannot take place of proof. 13. Keeping the aforesaid principles in mind when we examine the evidences led by the prosecution against the appellants, we find that the learned Sessions Judge has committed a serious error in law in holding that the prosecution has proved its case against the appellants beyond reasonable doubt. In our opinion, not only there is reasonable doubt on the complicity of the appellants in the crime, the prosecution has failed to prove by cogent and reliable evidence the circumstances sought to be proved against them. 14. On recovery of the incriminating articles from possession of the appellants and at their instance, Mr. In our opinion, not only there is reasonable doubt on the complicity of the appellants in the crime, the prosecution has failed to prove by cogent and reliable evidence the circumstances sought to be proved against them. 14. On recovery of the incriminating articles from possession of the appellants and at their instance, Mr. Jitendra Shankar Singh, the learned counsel for the informant has contended that; (i) the appellants who have put their signatures on the seizure-memo have not challenged recovery of cash and jewellery from their possession, (ii) the testimony of the police witnesses who have proved the seizure-memo vide Exhibits-3, 3/1, 3/2, 3/3, 3/4, 3/5 and 3/6 is sufficient to hold that cash and looted articles were recovered from the possession of the appellants, and (iii) merely because independent witnesses have not supported the seizures, evidence of the police witnesses and consequently seizure made from possession of the appellants cannot be discarded. 15. The learned counsel for the informant has relied on the decisions in “State Govt. of NCT of Delhi Vs. Sunil and Another” reported in (2001) 1 SCC 652 and “Ghanashyam Das Vs. State of Assam” reported in (2005) 13 SCC 387 , to fortify his contentions. 16. Section 27 of the Evidence Act starts with when any fact is deposed to as discovered in consequence of information received from a person accused of any offence. The heading of section 27 – how much of information received from the accused may be proved – indicates that the entire confessional statement of an accused is not admissible in evidence; only that part of the confessional statement of an accused is admissible in evidence which leads to discovery of a fact. In “Pulukuri Kottaya V. Emperor” reported in AIR 1947 PC 67 , the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates discovery to the fact thereby discovered may be proved. 17. 17. The prosecution has led evidence through P.W 9 and P.W 14 on recovery of a blood-stained knife which according to it was used in the crime and recovered pursuant to the disclosure made by Indrajit Sinha. We find that in his confessional statement the appellant, namely, Indrajit Sinha has stated that while fleeing away he threw the knife with which the deceased was killed in the bushes by the roadside. This statement of the appellant is clearly inadmissible in evidence. This relates to a past event and does not lead to discovery of a new fact. The confessional statement of Indrajit Sinha @ Vicky was recorded on 24.11.2006 at 13:30 hrs. by Sub-inspector Santosh Kumar-P.W 12 and the confessional statement of Rajesh Rashmi @ Rajesh Kashmi was recorded by him on 16.02.2007 at 16:00 hrs. By virtue of the delay in recording the confessional statement of Rajesh Rashmi @ Rajesh Kashmi, that is, about 3 months after the occurrence and, that too, much after the confessional statement of Indrajit Sinha was recorded it has lost its worth, whatever. P.W 9 has deposed in the court that a knife was recovered by the police and a seizure-memo was prepared on which he has put his signature. He has identified the seizure-memo which has been marked as Exhibit-1/5. He has deposed that the knife has been recovered at the instance of the accused persons. He has further stated that the knife was recovered from the bushes 10-20 steps away on right side of Gurabandha road. By now it is well-settled that discovery of a fact leading to recovery of an incriminating article must not be known to the police from before and the place from where the incriminating article is recovered should not be accessible to general public. In our opinion, on the basis of the evidence led through P.W 9 and P.W 14 recovery of a blood-stained knife which according to the prosecution was used in the crime is not an admissible evidence. The prosecution has not led evidence to establish that the place from where the blood-stained knife was recovered was not accessible to general public and it was known only to the appellants, namely, Indrajit and Rajesh Kashmi @ Rajesh Reshmi. The prosecution has not led evidence to establish that the place from where the blood-stained knife was recovered was not accessible to general public and it was known only to the appellants, namely, Indrajit and Rajesh Kashmi @ Rajesh Reshmi. The bushes situated by the roadside may be a lonely place, but cannot be said to be a place which was within the exclusive possession of the accused and not accessible to general public. Moreover, the prosecution has failed to establish that the knife recovered from the bushes was used in the crime. 18. In “Sunil and Another”, the Supreme Court has observed that recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter-VII of the Code. It has been held that the legal obligation to bring independent and respectable inhabitant of the locality to witness the seizure exercise under section 100 of the Code of Criminal Procedure is not attracted in case of seizure under Chapter-VII. The Supreme Court has held as under: “20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” 19. According to the prosecution at the instance of the appellant, namely, Indrajit Sinha @ Vicky two gold Nathiya one of which was broken and one NOKIA mobile phone without sim card were recovered from his house in the presence of Sagar Prasad Sahu and Munshu Murmu. However, these two persons were not examined as witness during the trial. At the instance of Rabish @ Shahzada Khan four pieces of gold-coated bangles and Rs.4,000/- were recovered from his house in presence of P.W 10 and P.W 13. However, these two persons were not examined as witness during the trial. At the instance of Rabish @ Shahzada Khan four pieces of gold-coated bangles and Rs.4,000/- were recovered from his house in presence of P.W 10 and P.W 13. From the house of Rajesh Rashmi @ Rajesh Kashmi two bangles of City Gold brand and Rs.4,500/- were recovered in presence of P.W 10 and P.W 11. However, the case set-up by the prosecution that all the looted articles were put on TIP on 06.02.2007 stands falsified from its own records. If confessional statement of Rajesh Rashmi @ Rajesh Kashmi was recorded on 16.02.2007, no recovery pursuant to his disclosure was made and if at all any recovery was made it could not have been put on TIP which was conducted on 06.02.2007. 20. On a careful perusal of the evidences adduced by the prosecution on proof of recovery of the looted articles from the appellants, we find that there is a glaring missing link in the prosecution's case. The prosecution has failed to establish that the looted articles which were put on TIP but not produced in the court, were not tampered. It has also failed to prove genuineness of the seizure-memo prepared pursuant to the recovery affected from possession of the appellants at their instance. The investigating officer has admitted that he did not take finger print and in paragraph no.9 of his cross-examination he says that he did not put seal on the articles seized at the place of occurrence and he did not put the mark of identification on them. In paragraph no.10 of his cross-examination, he says that he has not recorded in the diary that he had sealed the articles seized at Dhanbad. He has also admitted that NOKIA model No.1112 is freely available in the market. The investigating officer has admitted in the court that the recovered and seized articles were not produced in the court. He has stated in the court that he has not conducted investigation about the recovered articles and whether the ornaments were made of gold or were gold-plated. Above all, there was no list of the looted articles and the prosecution has never disclosed the details of such articles. The seizure-memo witnesses — P.W 10, P.W 11 and P.W 13 — have stated that they have put their signature on plain papers. Above all, there was no list of the looted articles and the prosecution has never disclosed the details of such articles. The seizure-memo witnesses — P.W 10, P.W 11 and P.W 13 — have stated that they have put their signature on plain papers. They have also deposed that on asking of the police they have done so and they do not know anything about the seizure from the appellants. True, the seizure-memo of the recovered articles have been proved by P.W 12 and P.W 14, but then, the aforesaid circumstances and the testimony of P.W 10, P.W 11 and P.W 13 make their evidence suspicious. In a case based on circumstantial evidence and, that too, where an adverse inference under section 114 of the Indian Evidence Act can be raised against an accused, in our opinion, conviction of the appellants for the offence of murder and robbery cannot be recorded on the basis of such evidence. Moreover, mere recovery of an incriminating material at the instance of an accused is not such incriminating circumstance only on the basis of which conviction of an accused can be recorded for such offences. How the law contemplates such a situation has been explained by the Supreme Court in “Gulab Chand v. State of M.P.”, reported in (1995) 3 SCC 574 , thus: “It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof.” 21. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof.” 21. In view of the above discussions, we find serious infirmities in the judgment of conviction dated 16.01.2010 under sections 394, 411 and 302/34 IPC and the order of sentence dated 19.01.2010 of R.I for life for the offence under sections 302/34 IPC, R.I for Ten years under section 394 IPC and R.I for Two years under section 411 IPC passed by the learned 1st Additional Sessions Judge, Jamshedpur, Singhbhum East in S.T. Case No. 154/07 against the appellants, namely, Indrajit Sinha @ Vicky and Rajesh Kashmi @ Rajesh Reshmi in Cr. Appeal (D.B.) No. 295 of 2010 and Rabish @ Shahzada Khan in Cr. Appeal (D.B.) No. 166 of 2010 and, accordingly, these are set-aside. 22. The above-named appellants are acquitted of the criminal charges framed against them. 23. All the appellants are on bail except the appellant, namely, Indrajit Sinha @ Vicky in Cr. Appeal (D.B.) No. 295 of 2010. 24. Accordingly, the appellant, namely, Indrajit Sinha @ Vicky, who is at present in custody, shall be set free forthwith, if not required in connection to any other case. 25. The appellants, namely, Rajesh Kashmi @ Rajesh Reshmi in Cr. Appeal (D.B.) No.295 of 2010 and Rabish @ Shahzada Khan in Cr. Appeal (D.B.) No.166 of 2010 are discharged of liability of the bail-bonds furnished by them. 26. In the result, Cr. Appeal (D.B.) No.295 of 2010 and Cr. Appeal (D.B.) No.166 of 2010 are allowed. 27. We appreciate the efforts of Mr. Manindra Kumar Sinha, the learned Amicus, who has ably assisted the Court arguing Cr. Appeal (D.B.) No. 295 of 2010 on behalf of the appellants. 28. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 29. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 30. Let the lower-court records be sent to the court concerned forthwith.