JUDGMENT Hon'ble Ravindra Maithani, J. (Oral) Challenge in this appeal is judgment and order dated 11.02.2019 in Sessions Trial No.165 of 2009, State vs. Francis @ Jugal Kishore and others, passed by the Court of learned Ist Additional Sessions Judge, Dehradun. By the impugned judgment and order the appellants have been convicted under Section 302 read with 34 IPC, 394 read with 34 IPC, 411 IPC and 201 read with 34 IPC and sentenced as hereunder:- (i) Under section 302 read with 34 IPC imprisonment for life and a fine of Rs.5,000/- each. In default of payment of fine to undergo imprisonment for a further period of two months. (ii) Under Section 394 read with 34 IPC rigorous imprisonment for five years and a fine of Rs.2000/- each. In default of payment of fine to undergo imprisonment for a further period of two months. (iii) Under Section 411 IPC rigorous imprisonment for two years. (iv) Under Section 201 read with 34 IPC rigorous imprisonment for two years and a fine of Rs.2000/- each. In default of payment of fine to undergo imprisonment for a further period of two months. All the sentences were directed to run concurrently. 2. Briefly stated, according to the prosecution deceased Swami Asthey (father Samuel Francis) was in-charge of an Ashram situated near Chota Rampur Town within Police Station, Sahaspur, District Dehradun. This Ashram was run by Catholic Diocese of Meerut. The deceased Swami Asthey was staying there for about 18-19 years, prior to the date of his death. In the same Ashram, a lady, named Mercy was also staying for her treatment and prayers. They both were killed and an information to this effect was given to the police Station Sahaspur on 22.09.2008 at 10:28 AM by Kukku son of Johnson. This information was telephonic, which was entered into GD of Police Station at report no.18 time 10:28 hours on 22.09.2008. Based on this information, when police reached at the spot, two dead bodies were spotted. Inquest was prepared. Thereafter on the same day at 01:50 p.m. a report was lodged by PW1 Alban Mendoca. Based on which, a chik FIR under Section 302 IPC was lodged. Post-mortem of both deceased Swami Asthey and Mercy was conducted on 22.09.2008 in the evening. 3. Inquest was prepared. Thereafter on the same day at 01:50 p.m. a report was lodged by PW1 Alban Mendoca. Based on which, a chik FIR under Section 302 IPC was lodged. Post-mortem of both deceased Swami Asthey and Mercy was conducted on 22.09.2008 in the evening. 3. During investigation police suspected involvement of appellant Francis alias Jugal Kishore, who was interrogated and based on his information, appellants Bablu alias Vipin Kumar, Arun Kumar and co-accused Mukesh Kumar Singh were further interrogated by the police. According to the prosecution on 08.10.2008 from the possession of appellant Arun Kumar, a mobile phone, which belonged to deceased Mercy, was recovered. On the same day at the instance of appellants and co-accused, Mukesh Kumar Singh a bag was recovered near a bridge on Selaqui River on Dehradun Ponta Road. The bag contained identity card etc. of the deceased. It is further the case of the prosecution that the appellants confessed to have committed the crime and it was also confessed by the appellants that the jewellery was kept with appellant Arun Kumar. On 14.10.2008, Police team reached in the village of appellant Arun Kumar in District J.P. Nagar, Uttar Pradesh. On 15.10.2008 from the courtyard of appellant Arun Kumar, at the instance of appellants and co-accused, jewellery was recovered. 4. According to the prosecution, from the scene of crime, finger print impressions were lifted from a telephone receiver and a glass tumbler. They were sent for forensic examination. These finger prints matches with the finger prints of appellant Arun Kumar. After investigation charge sheet under Section 302, 201, 394 and 411 IPC was submitted against the appellants and one more co-accused Mukesh Kumar. Cognizance taken and the case committed for trial. Charges under Sections 302 read with 34, 394 read with 34, 411 and 201 read with 34 IPC were framed against the appellants and co-accused Mukesh, to which they denied and claimed trial. It appears that during pendency of the trial, the file of co-accused Mukesh was separated and the trial proceeded against the appellants. In this judgment scrutiny of the evidence is being done with regard to the appellants only and not in relation with co-accused Mukesh Kumar Singh. 5. The prosecution examined 12 witnesses in support of the case, namely, PW1 Alban Mendoca, PW2 Dr. Y.S. Thapliyal, PW3 ASI Harkesh Singh, PW4 N.R. Saini, PW5 Rainer Sinus @ Kukku, PW6 Dr. In this judgment scrutiny of the evidence is being done with regard to the appellants only and not in relation with co-accused Mukesh Kumar Singh. 5. The prosecution examined 12 witnesses in support of the case, namely, PW1 Alban Mendoca, PW2 Dr. Y.S. Thapliyal, PW3 ASI Harkesh Singh, PW4 N.R. Saini, PW5 Rainer Sinus @ Kukku, PW6 Dr. Sandeep Kumar Sharma, PW7 Constable Santosh Kumar, PW8 R.B. Chamola, PW9 SI Manoj Aswal, PW10 Domnic Francis, PW11 Augustin Francis and PW12 Surendra Singh Kushwaha. 6. Appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘the Code'). According to the appellants they have been falsely implicated. They are innocent. Though all the appellants stated that they would adduce evidence in their defence but none did adduce evidence in defence. 7. After considering the material on record, the learned court below convicted the appellants and sentenced them, as stated hereinbefore. Aggrieved, the instant appeal. 8. Learned counsel for the appellants would argue that this is a case based on circumstantial evidence but the circumstances have not been established, which would indicate that it is the appellants and appellants alone, who have committed the offence. Learned counsel would raise following points in his arguments:- (1) According to the prosecution, based on telephonic surveillance the appellants were zeroed but there is no record to it. (2) Recovery of bags near a bridge on Selaqui River is doubtful; there is no independent witness to this recovery. (3) Based on the finger print report, the appellants cannot be convicted because; (i) Original report has not been placed and proved. (ii) The photo copy of the report is not complete. (iii) It is not proved by the prosecution as to how did the finger prints were lifted from the place of occurrence; those articles have not been produced before the court. (iv) No memo was prepared at the time when those finger prints were lifted. (v) It is not proved as to how the finger print impressions of the appellants were taken for forensic examination. (iv) No memo was prepared at the time when those finger prints were lifted. (v) It is not proved as to how the finger print impressions of the appellants were taken for forensic examination. (4) The recovery of jewellery from the residence of appellant Arun Kumar is totally doubtful for the following reason:- (i) There is no independent witness; according to the prosecution the police party reached in the village of appellant Arun Kumar on 14.10.2008 and stayed in the house of Gram Pradhan but local police was not informed, even village Pradhan or any other person was not called at the time of recovery. (ii) It is not proved beyond reasonable doubt by the prosecution that the alleged recovered jewellery is connected to the crime; statement of PW5 Rainer Sinus @ Kukku is not reliable; he is not a family member of deceased Mercy; he has no opportunity to identify this jewellery. 9. In support of his contention, learned counsel for the appellants placed reliance on the principle of law as has been laid down in the cases of Digamber Vaishnav and Another vs. State of Chhattisgarh (2019) 4 Supreme Court Cases 522, 2019 (1) NCC 749 and Madhu vs. State of Kerala (2012) 2 Supreme Court Case 399, 2012 (1) NCC 353 . In the case of Digamber Vaishnav (Supra), the Hon'ble Supreme Court has held inter-alia, as under:- “29. The second circumstance relied upon by the prosecution is the evidence of recovery. Under Section 27 of the Evidence Act, it is not the discovery of every fact that is admissible but the discovery of relevant fact is alone admissible. Relevancy is nothing but the connection or the link between the facts discovered with the crime. The recovery of the motorcycle is sought to be relied upon as a circumstance against the appellants. There is nothing on record to show that the motorcycle recovered at the instance of Appellant 1, belongs to him. PW-13, IO, in his cross-examination admits that he does not know whether Appellant 1 is the owner of the motorcycle. He further admits that no attempts were made by him to enquire about the owner of the vehicle." 10. In the case of Madhu (Supra), the Hon'ble Court, inter-alia, held as hereunder:- “5. The care and caution with which circumstantial evidence has to be evaluated stands recognised by judicial precedent. He further admits that no attempts were made by him to enquire about the owner of the vehicle." 10. In the case of Madhu (Supra), the Hon'ble Court, inter-alia, held as hereunder:- “5. The care and caution with which circumstantial evidence has to be evaluated stands recognised by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt." 11. On behalf of the State, learned State counsel would argue that there is strong motive to commit the offence by the appellants. There are circumstances, which are connected to each other, which establishes the guilt of the appellants. Finger prints were lifted from the place of occurrence, which subsequently matched with the finger prints of the appellant Arun Kumar. These finger prints were taken in the presence of Sub Divisional Magistrate and forensic experts have proved it. The photocopy of the finger print report has been proved. The articles were recovered near a bridge on Selaqui River on Dehradun Ponta Road. On 08.10.2008, at the instance of the appellants, a mobile phone belonging to the deceased Mercy was recovered from the possession of appellant Arun Kumar. On 15.10.2008 at the instance of all the appellants, the jewellery was also recovered, which subsequently on 25.11.2008 was identified by PW5 Rainer Sinus @ Kukku. 12. According to learned State counsel PW5 Rainer Sinus @ Kukku had occasion to identify the jewellery at the person of deceased Mercy because he was a visitor of the Ashram and had opportunities to see the jewellery. It is argued that there is no reason to falsely implicate the appellants. The prosecution has been able to prove the charges against the appellants and the learned Court below did not commit any error in convicting and sentencing the appellants. Hence, the appeal deserves to be dismissed. 13. This is a case based on circumstantial evidence. The deceased Swami Asthey was in-charge of an Ashram, which was run by the Catholic Diocese of Meerut. Deceased Mercy was staying in the Ashram for her treatment and prayers. Hence, the appeal deserves to be dismissed. 13. This is a case based on circumstantial evidence. The deceased Swami Asthey was in-charge of an Ashram, which was run by the Catholic Diocese of Meerut. Deceased Mercy was staying in the Ashram for her treatment and prayers. Both were found murdered, and telephonically this information was given to the Police Station on 22.09.2008 at 10:28 am by PW5 Rainer Sinus @ Kukku, which was entered into general diary of the Police Station at report no.18 and thereafter inquest prepared. 14. PW1 Alban Mendoca, is the first informant, who is a priest. When he heard about missing of father Asthey alias father Samuel Francis, he visited the Ashram and found dead bodies of father Asthey and Mercy. He lodged report, which he proved. 15. PW2 Dr. Y.S. Thapliyal conducted post mortem of the deceased Swami Asthey and Mercy. According to him, he found the following injuries on the person of Mercy:- 1. Lacerated wound in the size of 9x1 cm in the front side of neck; swelling present all over the face, neck and upper part of chest. 2. Stomach was swollen. Peeling of skin present. Plucking of hair present. In the in internal examination, a blood clot in the size of 5x4 cm was found in the brain; semi digested food 150 ml; intestine congested. Cause of death was injury on the brain. Duration of death was about 4 days. 16. According to the Dr. PW2 Dr. Y.S. Thapliyal, he found the following injuries on the person of Swami Asthey:- 1. There was rigor mortis in both the lower limbs of the deceased. 2. Contusion marks in the head of the deceased measuring 15x12 cm. 3. Lacerated wound in the size of 2 cm x 1 cm, on both the elbows. 4. In the front part of the neck a ligature mark in the size of 12 x 2 cm, which was above thyroid cartilage. 5. Ligature mark below thyroid cartilage in the size of 34 x 1 cm in the front portion of the neck. 6. There was swelling on the left eye of the deceased. It was filled with Blood. According to PW2 Dr. Y.S. Thapliyal the duration of the death was 2 days. Cause of the death was head injury. 17. PW3 SI Harkesh Singh proved general diary entries at Police Station. 6. There was swelling on the left eye of the deceased. It was filled with Blood. According to PW2 Dr. Y.S. Thapliyal the duration of the death was 2 days. Cause of the death was head injury. 17. PW3 SI Harkesh Singh proved general diary entries at Police Station. PW4 N.R. Saini, is a retired Tehsildar, who conducted identification of the jewellery allegedly recovered at the instance of appellants. This witness has stated about the identification proceedings and his report, which is Ext. A12. 18. PW5 Rainer Sinus @ Kukku is the person, who, according to the prosecution informed the police about the incident at 10:28 am on 22.09.2008 and he is the same person, who according to the prosecution, identified the jewellery. He is also the witness of inquest. According to him, he used to visit the Ashram and had occasion to see the jewellery of deceased Mercy. 19. PW6 Dr. Sandeep Kumar Sharma was in-charge of Field Unit, Dehradun. According to him on 22.09.2008 he received an information from control room. Thereafter he along with his team members Constable Satish Chandra, Constable Santosh, Constable Nand Lal proceeded to the place of occurrence, where under his direction, Constable Santosh took photographs and Constable Satish lifted finger prints from a telephone receiver and glass tumbler. The original report prepared, after finger prints comparison, is not on record. This witness produced a photo-state copy of the report. PW7 is Constable Santosh Kumar, who is a member of Field Unit under PW6 Dr. Sandeep Kumar Sharma. According to him, he helped scientist Nand Lal in lifting finger prints from receiver, knife and a glass tumbler on that day. According to him he took photographs of the place of occurrence. He produced a compact disk of the photographs and produced the photographs. 20. PW8 R.B. Chamola is a witness of recovery. According to him, they got information that appellant Francis @ Jugal Kishore is prime suspect. Location of his mobile number was followed and it was revealed that on the date of incident, it was near the place of occurrence. He was called for interrogation on 07.10.2008 and based on information received from him, appellant Arun Kumar, co-accused Mukesh and appellant Vipin were also interrogated and for that purpose a memo was also prepared, which this witness proved as Ext. A15. He was called for interrogation on 07.10.2008 and based on information received from him, appellant Arun Kumar, co-accused Mukesh and appellant Vipin were also interrogated and for that purpose a memo was also prepared, which this witness proved as Ext. A15. According to PW8 R.B. Chamola on 08.10.2008 from appellant Arun Kumar, a mobile phone belonging to deceased Mercy was recovered. A recovery memo Ext. A16 was prepared. Thereafter according to him, the appellants and co-accused confessed their guilt and at their instance two bags were recovered near a bridge. Recovery memo Ext. A17 was also proved by this witness. He also proved the recovered articles including mobile phone. 21. PW9 SI Manoj Aswal is first investigating officer. He prepared site plan. He is the person, who after information having been received on 22.09.2008 reached at the spot and prepared inquests of deceased Swami Asthey @ Samuel Francis and Mercy and also took various articles into custody. 22. PW10 Domnic Francis is younger brother of Swami Asthey (Samuel Francis). He simply stated as to what had happened. According to him, a lady, Mercy was also staying in the Ashram. PW11 Augustin Francis is also a brother of Swami Asthey @ Samuel Francis. He also states that father Asthey @ Samuel Francis was staying there, who was killed. 23. PW12 Surendra Singh Kushwaha is the investigating officer, who has stated about steps taken by him during investigation. According to him on 08.10.2008 appellants and co-accused Mukesh were brought at the police station and when he interrogated them, they confessed their guilt and also told that two bags have been kept by them below Selaqui Bridge in the bushes; some jewellery they sold in Moradabad and some jewellery, according to this witness was with the appellant Arun Balmiki. PW12 Surendra Singh Kushwaha would state that thereafter at the instance of the appellants two bags were recovered and then on 15.10.2008 at about 10:00 AM, at the instance of the appellants, from the house of appellant Arun Kumar, in a polythene, beneath the floor jewellery was also recovered. He proves recovery memo. This witness has also stated about the recovery of a mobile from appellant Arun Kumar. According to him, finger prints were taken. The finger prints of the appellants were taken on 25.11.2008 and they were sent for comparison. Recovered jewellery was identified by PW5 Rainer Sinus @ Kukku. He proves recovery memo. This witness has also stated about the recovery of a mobile from appellant Arun Kumar. According to him, finger prints were taken. The finger prints of the appellants were taken on 25.11.2008 and they were sent for comparison. Recovered jewellery was identified by PW5 Rainer Sinus @ Kukku. This witness proves the documents and articles before the Court and also proves the charge sheet submitted by him. 24. It is a case based on circumstantial evidence. The motive definitely plays very important role in such cases. The chain of circumstances should be connected in such a manner that it should leave no doubt and the only irresistible conclusion, which may be drawn should indicate that it is the appellants and the appellants alone, who have committed the crime. The prosecution tried to establish the following links; 1. Surveillance of the phone of appellant Francis @ Jugal Kishore, which was found, located near the place of occurrence, on the date of occurrence and soon before that. 2. Recovery of a mobile phone, belonging to deceased Mercy from appellant Arun Kumar on 08.10.2008. 3. Recovery of bags at the instance of appellants and co-accused Mukesh near Selaqui Bridge on Dehradun Ponta Road. 4. Recovery of jewellery at the instance of all the appellants from the house of appellant Arun Kumar on 15.10.2008 at 10:00 AM. 5. Identification of recovered jewellery by PW5 Rainer Sinus @ Kukku. 6. Finger prints found at the place of occurrence matched with the finger prints of the appellant Arun Kumar. 25. In so far as location of the appellants near the place of occurrence is concerned, there is no record, as such, proved by the prosecution. It is a matter of electronic evidence. It is required to be proved under Section 65 B of The Indian Evidence Act, 1872. What was the mobile phone number of the appellant Francis @ Jugal Kishor? Who got its details and from whom? When was those details obtained? PW8 R.B. Chamola states that the mobile phone of appellant Francis @ Jugal Kishor was 9917371307. But, there is no record to it. It's a matter of document. Best evidence has not been produced. What was the location of the phone number on 21 or 22.09.2008. There is no record or documents to establish it. When was those details obtained? PW8 R.B. Chamola states that the mobile phone of appellant Francis @ Jugal Kishor was 9917371307. But, there is no record to it. It's a matter of document. Best evidence has not been produced. What was the location of the phone number on 21 or 22.09.2008. There is no record or documents to establish it. In the absence of it, it is not established that the appellants were near the place of occurrence on the date of occurrence soon before that. But, this is still a very beginning link. According to prosecution, the real story begins thereafter. 26. On 07.10.2008 according to the prosecution, all the appellants were brought at the Police Station for interrogation and what is important to note is according to PW8 R.B. Chamola, a mobile phone belonging to deceased Mercy was recovered from the appellant Arun Kumar. Here it may be noted that according to prosecution on 07.10.2008 all the appellants were called for interrogation. Where did they stay on 07.10.2008? They were not local residents. On 08.10.2008, according to prosecution from the search of appellant Arun Kumar, a mobile phone was recovered and a recovery memo Ext. A16 was prepared. According to it, it was told to the police that the mobile belonged to deceased Mercy but, who told it to the police? Was there any SIM in it? If so what was its number? In whose name this SIM was purchased? Who purchased this Cell? There is no record to it. Prosecution has utterly failed to establish that any mobile phone recovered from Arun Kumar was connected with the crime. It is not established that the mobile phone, which allegedly recovered from Arun Kumar belonged to deceased Mercy. 27. There is another link, which prosecution tried to establish with regard to recovery made from below a Bridge. According to the prosecution at the instance of the appellants, a bag was recovered on a National Highway. There is no independent witness to it. It was a very serious case; two persons were murdered and according to the prosecution, the appellants were called for interrogation on 07.10.2008. According to the prosecution at the instance of the appellants, a bag was recovered on a National Highway. There is no independent witness to it. It was a very serious case; two persons were murdered and according to the prosecution, the appellants were called for interrogation on 07.10.2008. As stated, it is not established by the prosecution as to where these appellants were kept in the night of 07.10.2008, because what prosecution tried to show is that on 08.10.2008 when interrogated, they confessed their guilt and also told that they would get the bags recovered. Why no steps were taken by the police to ensure presence of independent witnesses? It is very interesting to note that in the recovery memo Ext. A 17 it is stated that no witness was available though police tried to search for witnesses. PW12 S.I. Surender Singh Kushwaha is the investigating officer. He also states that he witnessed the recovery of bags from the Selaqui Bridge. At page 9 of his examination, he states that place of occurrence was below a Bridge on a National Highway. According to him, they requested the people around there to witness the recovery but they denied. What would be the effect of contradictions depends upon facts and circumstances of each case. The gravity of contradiction may not be universally applicable to all cases. Here is a case, in which according to the prosecution, the appellants confessed their guilt and assured that they would get the bags recovered from a place. The police did not try to get the presence of independent witnesses at the time of recovery. According to recovery memo, no person was available, who could witness the recovery, whereas, according to PW12 Surendra Singh Kushwaha there were people around but they declined to witness the recovery. It definitely doubts the entire recovery. 28. The another circumstances, which the prosecution tried to establish is recovery of jewellery from the house of appellant Arun Kumar. According to PW12 Surendra Singh Kushwaha they proceeded from Police Station on 14.10.2008 and reached in the village of appellant Arun Kumar on the same day at 09:10 PM. In that night they stayed in the house of village Pradhan and next day, according to PW12 Surendra Singh Kushwaha, at the instance of appellants the jewellery was recovered from the house of the appellant Arun Kumar. In that night they stayed in the house of village Pradhan and next day, according to PW12 Surendra Singh Kushwaha, at the instance of appellants the jewellery was recovered from the house of the appellant Arun Kumar. There are two things connected with this recovery (i) whether this recovery has been proved and (ii) whether the recovered articles are connected to the crime. 29. The recovery memo is Ext. 35, as proved by the prosecution. Not only this, there is a site plan also. This jewellery, according to the prosecution was buried by the appellants. Appellant Arun Kumar's grand mother was staying in the house. There is no independent witness to this recovery. What is written in this recovery memo is that when requested, the persons, who had assembled at the time of recovery, did not agree to be a witness. When asked about it, PW12 S.I. Surendra Singh Kushwaha in page 7 of his statement states that at the time of recovery only grand mother of appellant Arun Kumar, namely, Smt. Kalawati (Ramkali?) was present. Why did it happen? Police team from the State of Uttarakhand visits in the State of Uttar Pradesh to recover jewellery, which according to the prosecution was related to this crime. Why information to the local police was not given? The police party stayed in village Pradhan's House. There is a site plan of the place of alleged recovery, which is Ext.A-36, which reveals that, in fact, one wall of the house of Gram Pradhan and the appellant Arun Kumar's house is common. What prevented the police party to take village Pradhan to witness the recovery or to call some more responsible persons of the locality to witness the recovery and as stated, what prevented the police party to inform the local police? It makes this recovery also much doubtful. The recovery of jewellery from the house of the appellant Arun Kumar is not proved. 30. Next is the question of identification of the jewellery? PW4 N.R. Saini, conducted the identification. PW4 N.R. Saini states that he fixed 25.11.2008 for identification of the jewellery. This witness proved the record of identification, which is Ext. A12. According to it PW5 Rainer Sinus @ Kukku identified all the articles correctly. They are in all four articles. Two bags, four bangles, two ear rings and one ladies ring. PW4 N.R. Saini, conducted the identification. PW4 N.R. Saini states that he fixed 25.11.2008 for identification of the jewellery. This witness proved the record of identification, which is Ext. A12. According to it PW5 Rainer Sinus @ Kukku identified all the articles correctly. They are in all four articles. Two bags, four bangles, two ear rings and one ladies ring. It is argued that these articles were mixed with the similar kind of jewellery. According to PW5 Rainer Sinus @ Kukku when he saw the dead bodies, he found that two tops, four bangles, one ring and one mobile of deceased Mercy missing and he identified them subsequently, when they were recovered. He also states that alongwith the alleged jewellery a large number of similar jewellery was also mixed up. The recovered articles were sealed. How did PW4 N.R. Saini directed for availability of similar kind of jewellery because he had not seen the jewellery before. 31. PW5 Rainer Sinus @ Kukku is definitely not a person, who was working in the Ashram where deceased Mercy was killed. He was also not a family member of her. What interaction had he with deceased Mercy? According to PW5 Rainer Sinus @ Kukku his daughter was sick and she was under treatment of Swami Asthey and he used to visit him. How PW5 Rainer Sinus @ Kukku could say that when he saw deceased Mercy her mobile was missing? Where did he search for the mobile? Did he search in the house? How could he say like this? When asked in the cross-examination, he states that he did tell it to the investigating officer that jewellery and mobile of the deceased Mercy was missing. This was not recorded by the investigating officer. When asked PW5 Rainer Sinus @ Kukku says he can't tell as to why the investigating officer has not recorded this part of his statement. The statement of PW5 Rainer Sinus @ Kukku does not inspire confidence with regard to identification of jewellery by him. Both the recovery as well as identification of the jewellery are doubtful. 32. There is a report of finger print examination. PW6 Dr. Sandeep Kumar Sharma and PW7 Constable Santosh Kumar have stated about it. According to them, finger prints were lifted from the place of occurrence from a telephone receiver and a glass tumbler. Both the recovery as well as identification of the jewellery are doubtful. 32. There is a report of finger print examination. PW6 Dr. Sandeep Kumar Sharma and PW7 Constable Santosh Kumar have stated about it. According to them, finger prints were lifted from the place of occurrence from a telephone receiver and a glass tumbler. PW7 Santosh Kumar adds one more article and says that it was lifted from a knife also. There is no record to it. That telephone receiver or glass tumbler have not been seized. No proceedings were done at the time of lifting such finger prints. The site plan of place of occurrence is Ext. A18, which is proved by PW8 R.B. Chamola. In this map the position of telephone receiver as well as glass tumbler has not been shown. PW7 Santosh Kumar states that finger prints were also lifted from a knife. Where is that knife? Where was it lying? It is also not shown and established by the prosecution. This is one part of the story. The other part is as to when specimen fingerprints were taken. 33. It is true that according to PW6 Dr. Sandeep Kumar Sharma he filed a photo-state copy of the report from his own record but where is the original report. Not even a single word has been stated by the prosecution. Secondary evidence cannot be filed in a routine manner. Rule of evidence is that the primary evidence has to be adduced and secondary evidence may be adduced only under the circumstance as given under Section 65 of the Evidence Act, 1872 which reads as hereunder:- 65. Not even a single word has been stated by the prosecution. Secondary evidence cannot be filed in a routine manner. Rule of evidence is that the primary evidence has to be adduced and secondary evidence may be adduced only under the circumstance as given under Section 65 of the Evidence Act, 1872 which reads as hereunder:- 65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:— (a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 34. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 34. As stated, prosecution has even not shown as to where is the original. It is also not shown as to from which record, PW6 Dr. Sandeep Kumar Sharma has filed the photocopy. Why efforts were not made to get the original record? 35. In the case of Mahmood vs. State of U.P. (1976) 1 Supreme Court Cases, 542, the Hon'ble Supreme Court discussed a case where finger print report was placed as a proof of the guilt. In that case finger print were found on a Gandasa, a weapon of the crime but the Hon'ble Court held that it does not prove that it is the accused only, who committed the offence. It was observed as hereunder:- “18. Secondly, even if it is assumed that the handle of this gandasa bore the finger-prints of the appellants, then also it would not inexorably and unmistakably lead to the conclusion that the appellant, and none-else was the murderer of Dwarka, unless it was firmly proved further that the fatal injury to the deceased was caused with this weapon. Definite proof of this link was lacking in this case. The missing link could be best supplied by showing that there was blood on this gandasa, and that blood was of human origin. But this was not done." 36. The finger print expert report is definitely an opinion for assisting the Court to appreciate the evidence. It, in itself, cannot conclusively prove the guilt, without any assessment. It is subject to scrutiny before the Court. The report has to be read and it is the basis of opinion of the expert, which carry much weight in assessing such finger print expert's report. 37. As stated, it is not established or proved by the prosecution as to how the finger prints were lifted from the place of occurrence. Now there is another question how the finger prints of appellants were taken? None of the witnesses have stated a single word about it. 37. As stated, it is not established or proved by the prosecution as to how the finger prints were lifted from the place of occurrence. Now there is another question how the finger prints of appellants were taken? None of the witnesses have stated a single word about it. It does not even stated by the prosecution as to how the finger prints were taken; who authorized it or when they were taken even unauthorizedly. It is true that along with the report, which is filed by PW6 Dr. Sandeep Kumar Sharma, some finger print impressions have been filed and which, it appears, have also been seen by some Sub Divisional Magistrate. But, merely because they have been seen by some Sub Divisional Magistrate, it cannot be presumed that they were taken under the order of some Magistrate or were taken in the presence of some responsible officer, who could verify them that it is the appellants, whose finger prints have been taken. This is also lacking. Thus, the prosecution further failed to establish that the finger prints of appellants were ever taken for comparison? It is even not shown as to when and where and under whose orders those finger prints impression were taken? Where were they kept? Who took them to the forensic science laboratory? Were they intact? Prosecution has not established it. 38. As stated, original finger print examination report is not filed. It is not established as to where the original is? It is also not established as to from where the photo copy of the report was obtained? The Court can not delegate the task of adjudication to an expert. A person cannot be convicted merely because an expert finds finger print impression of an accused on the scene of crime. The report of the expert should be considered by the Court. The Court should read the similarity between the marks with the help of expert and arrive on its own conclusion. 39. In the instant case even the photostate copy of the finger print examination report is incomplete. In page 2 of this report at serial nos.1 and 2 it is stated that similarities were found on two impressions; one taken from the place of incident and second the right hand finger of the appellant Arun Kumar. 39. In the instant case even the photostate copy of the finger print examination report is incomplete. In page 2 of this report at serial nos.1 and 2 it is stated that similarities were found on two impressions; one taken from the place of incident and second the right hand finger of the appellant Arun Kumar. What is stated in serial nos.1 and 2 is that there similarities have been shown by red lines. But, on record there is no report, which could show those similarities with any lines, as such. This report is definitely incomplete. Comparison of disputed and admitted finger print impression is not placed. The basis of opinion is not complete. It does not give enough material for evaluation of this report by the Court. It cannot be said that this report proves that any finger print as found from the place of occurrence, did match with any of the appellants. 40. In view of the foregoing discussion, this Court is of the view that the prosecution has not been able to prove the charges against the appellants. The appellants ought to have been acquitted of the charges. The learned court below committed an error in convicting and sentencing the appellants. Therefore, the impugned judgment and order deserves to be set aside and the appeals allowed. 41. The appeals are allowed. 42. The impugned judgment and order dated 11.02.2019 is set aside. The appellants are acquitted of the charges under Sections 302 read with 34 IPC, 394 read with 34 IPC, 411 IPC and 201 read with 34 IPC. 43. The appellants are in jail. They be released forthwith, if not wanted in any other case. 44. Let the copy of the judgment along with lower court record be sent to the court below for compliance.