JUDGMENT : BANWARI LAL SHARMA, J. 1. Appellant-accused- Vijay Kumar @ Bijju preferred this jail appeal assailing the impugned judgment of conviction and order of sentence dated 19.02.2015, passed by learned Additional Sessions Judge No. 4, Ajmer, in Session Case No. 94/2012, whereby, learned Additional Sessions Judge No. 4, Ajmer convicted the accused-appellant for the offences under Sections 302 IPC and Section 25 (1-B) (b) of the Arms Act and sentenced him as under:- Under Section 302 IPC Life term imprisonment with fine of Rs.5,000/-, in case of default in payment of fine, to further undergo 3 months additional rigorous imprisonment. Under Section 25 (1-B) (b) of the Arms Act three years rigorous imprisonment with fine of Rs.500/-, in case of default in payment of fine, to further undergo one month additional rigorous imprisonment. 2. The brief and relevant facts giving arise to this appeal are that on 29.01.2011, complainant-PW-1- Gangadhar Mankani submitted a written report (Exhibit-P-1) before S.H.O. Police Station- Christian Ganj, Ajmer stating therein that he is doing business of construction and interior decoration and residing at house No. 20/37 Vaishali Nagar, Ajmer. His father Shri Gopal Das Ji has a shop in the name of Gopal Paints & Hardware which is about 250 meters away from his house. Today i.e. on 29.01.2011, his father went to shop at about 8:00-8:30 a.m. Complainant-PW-1 returned to his house at about 7:45 p.m. His wife- Uma and sister-in-law (Bhabhi) Bhagwanti told him that father (Gopal Das Ji) had not returned as yet. Thereupon he made a telephonic call to his father, it was out of range. Thereafter, he called family servant- Kalu, he told him that he had returned from the shop at 6:30 p.m. and at that time Dada (Gopal Das Ji) was at the shop. Thereafter, he had sent his nephew- Nitin and son- Prashant to shop and after having meals he also went to Betel nut shop and after taking tobacco and cigarette, he also went to his father’s shop where Nitin and Prashant met him and they were crying. They told him that somebody committed murder of Baba (Gopal Das Ji). Uncle- Kishore also came there, they went to police station. Thereafter, police reached on the spot. They told him that somebody committed murder of Baba (Gopal Das Ji). Uncle- Kishore also came there, they went to police station. Thereafter, police reached on the spot. It was informed to police that someone committed murder of his father by some sharp edged and pointed weapon and inflicted injuries on head, mouth, throat and abdomen of father repeatedly. Dead body is lying in the shop. The blood is spreading at the shop and murder has been committed by the murderer between 7:00-9:00 p.m. 3. On the aforesaid report, FIR No. 58/2011 for offence under Section 302 IPC was registered at Police Station- Christian Ganj, Ajmer and investigation commenced. 4. During investigation, police arrested accused-appellant vide arrest memo (Exhibit-P-94) on 07.02.2011 at 5:00 p.m. At instance of accused-appellant trouser, t-shirt, shoes, Gupti and one mobile were recovered. The appellant was chargesheeted for the offences under Sections 302 IPC and 4/25 of the Arms Act. Accordingly, charge-sheet was filed on 28.04.2011 before learned Judicial Magistrate First Class No. 3, Ajmer. Since the offence under Section 302 IPC is exclusively triable by Sessions Judge, therefore, learned Magistrate after complying the provisions enshrined in Section 207 Cr.P.C., committed the case to learned Sessions Judge, Ajmer on the even date under Section 209 Cr.P.C. 5. Learned Sessions Judge, Ajmer vide order dated 15th June, 2011 assigned the matter for trial to learned Additional Sessions Judge (Fast Track) No. 1, Ajmer. 6. Vide order dated 12.07.2011, after hearing on charge, charges were framed against the accused-appellant for the offences under Sections 459, 302 IPC and 4/25 of the Arms Act. The charges were explained to the accused-appellant, he denied the same and claimed for trial. 7. During trial vide order dated 05.11.2012, the matter was again transferred from learned Additional Sessions Judge (Fast Track) No. 1, Ajmer to learned Additional Sessions Judge No. 4, Ajmer (hereinafter referred to as “the trial Court”). 8. To substantiate the charges against the appellant-accused, prosecution examined sixteen witnesses and also proved as many as 129 documents. Thereafter, accused-appellant was examined under Section 313 Cr.P.C. He denied the prosecution evidence put to him and stated that before arrest he was illegally detained by the police and a sharp edged weapon was planted. He claimed innocence. 9. 8. To substantiate the charges against the appellant-accused, prosecution examined sixteen witnesses and also proved as many as 129 documents. Thereafter, accused-appellant was examined under Section 313 Cr.P.C. He denied the prosecution evidence put to him and stated that before arrest he was illegally detained by the police and a sharp edged weapon was planted. He claimed innocence. 9. In defence, accused-appellant proved two documents Exhibit-D-1, statements of Gangadhar and D-2 servant- Kalu recorded under Section 161 Cr.P.C. Thereafter, after hearing Additional Public Prosecutor and counsel for the appellant-accused, learned trial Court convicted the accused-appellant and sentenced as aforesaid vide impugned judgment of conviction and order of sentence dated 19.02.2015. 10. Aggrieved against the judgment of conviction and order of sentence, accused-appellant has preferred this jail appeal before this Court. 11. Mr. Kapil Gupta learned counsel appearing on behalf of accused-appellant submits that prosecution case rests on circumstantial evidence only. He submits that accused-appellant has convicted by the trial Court on the basis of recovery of blood stained trouser, t-shirt, mobile and Gupti and on the basis of identification of place of occurrence. 12. He submits that so far as the recovery of trouser and t-shirt is concerned, it is from an open place which is accessible to all. It is alleged that trouser and t-shirt was stained with blood but the blood group has not established and the blood group of accused was also not taken, therefore, on the basis of recovery of articles from open place, accused-appellant cannot be connected with the alleged crime. 13. He submits that the next basis of conviction of the trial Court is recovery of mobile and Gupti. So far as Gupti is concerned, no matching blood group was ascertained on the Gupti and same was not shown to the doctor who conducted the postmortem report, therefore, prosecution failed to prove that the injuries which were found on the body of deceased were possible from the alleged Gupti, therefore, on the basis of such recovery accused-appellant cannot be connected with the alleged crime. 14. The next circumstance to record conviction relied by the trial Court is recovery of mobile. 14. The next circumstance to record conviction relied by the trial Court is recovery of mobile. In this regard, it is submitted that in FIR there is no allegation regarding theft of mobile of deceased, therefore, prosecution has improved the case in regard to recovery of mobile and no bill of mobile was proved by the prosecution to prove that mobile belongs to deceased. Not only this, prosecution failed to prove the location of mobile at the time of occurrence, therefore, accused-appellant cannot be connected with the alleged crime on the basis of recovery of mobile also. 15. He further submits that place of occurrence was already in knowledge of witnesses and Investigating Officer, therefore, identification of place of occurrence is of no consequence thus same cannot be made a basis for conviction. 16. It is urged that without considering all these facts, learned trial Court wrongly convicted and sentenced the appellant-accused, therefore, this appeal may be allowed and the impugned judgment of conviction and order of sentence may be quashed and set aside and the appellant-accused may be acquitted. 17. Per contra learned Public Prosecutor Mr. Javed Choudhary supported the impugned judgment and submitted that though prosecution case is based on the circumstantial evidence but from the recoveries made at instance of accused-appellant, are sufficient to connect him with the alleged crime. He submits that learned trial Court rightly appreciated the evidence and convicted the appellant-accused and sentenced, therefore, this appeal may be dismissed. 18. We have considered rival submissions of the parties and perused the record. 19. The perusal of the record, reveals that complainant-PW-1- Gangadhar in his statement only repeated the facts mentioned in the FIR. He proved his written report (Exhibit-P-1), site plan (Exhibit-P-2), inspection report of dead body (Exhibit-P-3), recovery memo of wet blood (Exhibit-P-4), recovery memo of iron parkhi (Exhibit-P-5), recovery memo of blood smeared samosam bag (Exhibit-P-6), recovery memo of keychain, specs (Exhibit-P-7), recovery memo of pair of slipper (Exhibit-P-8), recovery memo of muffler and white towel (Exhibit-P-9), recovery memo of catalog card (Exhibit-P-10), recovery memo of cash of Rs. 6,400/- (Exhibit-P-11), recovery memo of blood stained clothes of deceased (Gopal Das) (Exhibit-P-12), Inquest report of dead body of deceased (Exhibit-P-13) and Fard supurdagi lash (Exhibit-P-14). 20. He also stated that the aforesaid articles were seized before him. 6,400/- (Exhibit-P-11), recovery memo of blood stained clothes of deceased (Gopal Das) (Exhibit-P-12), Inquest report of dead body of deceased (Exhibit-P-13) and Fard supurdagi lash (Exhibit-P-14). 20. He also stated that the aforesaid articles were seized before him. He proved his signature on the respective recovery memos and also stated that thereafter police recovered mobile of his father. 21. During cross-examination, he stated that his father has a mobile sim bearing mobile number 98291059 but he is not remembering the remaining numbers and the mobile was of Nokia 1109. 22. PW-2-Kalu who is servant of deceased- Gopal Das, was working in the shop of deceased. He stated that he availed four days leave to go to his village- Ladoli. On 28.01.2011 evening, he returned to Ajmer. On 29.01.2011, he went to the shop and remained at shop approximately till 6:00-7:00 p.m. and about 6:30-7:00 p.m after putting the goods inside the shop, he left the shop. Thereafter, about 9:00 p.m. he received a phone call from Soni Bhai and came to know that shop is open but Dada (Gopal Das Ji) is not there. On which, he informed that he left the shop at about 6:30-7:00 p.m. after putting the goods inside the shop and Dada was also telling that he shall leave the shop early. Thereafter, on request of Soni Bhai, he went to shop where crowd had gathered and police was also there. Dada (Gopal Das Ji) was lying in the pool of blood having wounds on his body. He identified the accused-appellant and stated that he used to come to the shop in connection with business. 23. He proved and stated that police recovered pant, t-shirt in floor bag on instance of accused-appellant vide Exhibit-P-15 and also prepared site plan of place of recovery Exhibit-P-16. 24. During cross-examination, he stated that in his presence police did not call other persons for signing the proceedings drawn. He also stated that police used to call him for interrogation and other persons were also used to be called for interrogation. 25. PW-3-Kishore who is son of deceased. He also supported the statement of PW-1- Gangadhar. He proved his signature on inquest report (Exhibit-P-13). 26. He also stated that police used to call him for interrogation and other persons were also used to be called for interrogation. 25. PW-3-Kishore who is son of deceased. He also supported the statement of PW-1- Gangadhar. He proved his signature on inquest report (Exhibit-P-13). 26. PW-4- Pitambar Malkani, nephew of deceased, in his statement stated that he went to the shop where people had gathered and dead body of his uncle- Gopal Das Ji was lying in the shop, in pool of blood where police inspected the place of occurrence. He also proved Exhibit-P-2 to Exhibit-P-14. 27. PW-5-Pawan, who is grand-son of deceased, in his statement stated that on 29.01.2011 about 8:30 p.m. when he saw that his grand-father’s shop is open and no-one is there on counter, he went to the shop and sat on the counter. After some time, his brother- Nitin who was coming from school called him and inquired whether grand-father has gone to house. After some time, Nitin, Pinku and Bhavesh and thereafter his uncle Gangadhar @ Sonu came there and at their behest along with Rohit checked the inner portion of the shop where they found that grand-father was lying in pool of blood then suddenly he returned outside. Thereafter, his friend’s father called police. 28. PW-6-Nitin Mankani in his statement stated that when he was passing through Gopal Paints & Hardware, at that time, Pawan was sitting at the counter. He asked him that why are you sitting at such a late hour. He answered that grand-father had not closed the shop, perhaps he has gone to the home. He told him to go and inquire about grand-father and later informed that grandfather had not reached home. Thereafter, he made a phone call on mobile of grand-father which was reported switched off. He went to his uncle- Gangadhar who instructed him to go to the shop. Prashant and Bhavesh also followed him. Thereafter, he went inside the shop with uncle- Kishore where he saw that grandfather was lying in pool of blood and blood was also oozing from his body. 29. PW-7- Smt. Uma in her statement stated that on 29.01.2011 at 8:00 p.m. when she was returning to home, she saw that grand-father’s shop was open and lights were on. Pawan told her that grand-father’s mobile is switched off. 29. PW-7- Smt. Uma in her statement stated that on 29.01.2011 at 8:00 p.m. when she was returning to home, she saw that grand-father’s shop was open and lights were on. Pawan told her that grand-father’s mobile is switched off. About 15-20 minutes later, her brother-in-law Kishore came and told her that someone committed murder of Papa. Thereafter, he went to the police station for lodging the report. She went to the shop where she saw that father (deceased) was lying in pool of blood and blood was oozing from his nose, throat and his specs, muffler and keys were lying there. Someone committed his murder by some sharp edged weapon. 30. PW-8- Ghanshyam Sharma took photographs of the place of occurrence and also at the mortuary and at the police station. He also proved photographs i.e. Exhibit P-17 to P-67, P-68, P-76, P-77 and P-78. 31. PW-9- Bhim Singh Prajapati in his statement stated that on 10.02.2011 accused identified the place of occurrence in presence of ASI, Mr. Kesar Singh, he proved Exhibit-P-79. He also stated that ASI, Kesar Singh took memory card from the photographer vide Exhibit-P-80. 32. PW-10- Mahesh Kumar in his statement stated that he deposited thirteen sealed packets relating to case No. 58/2011 at Forensic Science Laboratory after receiving the same from Malkhana. He proved forwarding letter of Superintendent of Police (Exhibit-P-83) and receipt (Exhibit-P-84). 33. PW-11-Shahidul in his statement stated that in his presence accused took the police at Tagore Nagar Colony behind the house of Dr. Trivedi where police recovered a bag in which pant, t-shirt and shoes were found, which were seized and sealed by the police. He proved Exhibit-P-15 and Exhibit-P-16. He also identified the accused in the Court during trial. 34. PW-12- Kesar Singh proved the recovery memo of Gupti Exhibit-P-85 and site plan of place of recovery of blood smeared Gupti vide Exhibit-P-86. In his statement, he stated that in his presence police recovered Gupti and used Nokia 1100 mobile at instance of the accused. He also proved Exhibit-P-79, Exhibit-P-80 and Exhibit-P-87. 35. PW-13- Mangal Chand, Malkhana In-charge, in his statement stated that on 30.01.2011, sealed articles marked as A, B, C, D, E, F, G and H with Rs. 6,400/- were deposited in Malkhana which were later on handed-over to Constable, Mahesh Kumar for examination from Forensic Science Laboratory. He also proved Exhibit-P-79, Exhibit-P-80 and Exhibit-P-87. 35. PW-13- Mangal Chand, Malkhana In-charge, in his statement stated that on 30.01.2011, sealed articles marked as A, B, C, D, E, F, G and H with Rs. 6,400/- were deposited in Malkhana which were later on handed-over to Constable, Mahesh Kumar for examination from Forensic Science Laboratory. He proved Malkhana register Exhibit-P-88 wherein relevant entries are at Serial Nos. 47, 48 and 49. He also proved the entries at Serial Nos. 65, 66 and 67 vide Exhibit-P-89. 36. PW-14- Sub Inspector, Rohit Chauhan in his statement stated that on 29.01.2011 Hiralal submitted a written report before him which was endorsed by SHO Shri Pramod Swami, on which, he registered an FIR (Exhibit-P-90). 37. PW-15- Dr. Sumer Singh, Medical Jurist, in his statement stated that on 30.01.2011, being a member of the Medical Board postmortem was conducted of the body of deceased- Gopal Das (Exhibit-P-91) and other members of Medical Board were Dr. B.L. Yadav and Dr. Rajmani. He stated that there were 34 injuries on the body of deceased by some sharp edged weapon and same were sufficient to cause death and the cause of death was bleeding due to multiple injuries. 38. PW-16- Pramod Swami who is Investigating Officer deposed regarding investigation and recoveries. 39. On the basis of aforesaid evidence, learned trial Court came to conclusion that it is a case of circumstantial evidence. Learned trial Court considered four relevant circumstances for convicting the appellant which are as under:- (i) Recovery of bag at instance of the accused from shrubs wherefrom blood stained pant, full sleeves t-shirt and shoes of accused were found. (ii) Blood stained Nokia 1108 mobile belonging to deceased was recovered at instance of the accused. (iii) Blood stained Gupti was recovered at instance of the accused from his residential house. (iv) Injuries were found at the hands of the accused. 40. Investigating Officer PW-16- Mr. Pramod Swami in his Court statement proved disclosure statement of accused (Exhibit-P-95) regarding recovery of pant, t-shirt and shoes. In pursuance of the aforesaid disclosure statement, Investigating Officer recovered one used pant, full sleeve t-shirt and shoes which were stained with blood. This recovery memo was prepared in the presence of Vijay Kumar @ Bijju and Kalu. Kalu was examined as PW-2 and he proved the recoveries. 41. In pursuance of the aforesaid disclosure statement, Investigating Officer recovered one used pant, full sleeve t-shirt and shoes which were stained with blood. This recovery memo was prepared in the presence of Vijay Kumar @ Bijju and Kalu. Kalu was examined as PW-2 and he proved the recoveries. 41. PW-2- Kalu during cross-examination stated that police did not call anyone during recovery of articles. Not only this, he also stated that the place from where garments were recovered is open plots. According to the prosecution, recovered clothes i.e. pant and t-shirt & shoes were sent to Forensic Science Laboratory for determining the blood group of the articles. 42. As per Forensic Science Laboratory report (Exhibit-P-129) human blood was found on these articles but blood group could not be determined. Further, there is no cogent evidence to prove that recovered pant, t-shirt and shoes belong to the accused, furthermore the recoveries are from open place which is accessible to all. 43. None of the witness stated that they saw the accused wearing aforesaid pant, t-shirt and shoes, therefore, recovery of blood stained pant, t-shirt and shoes in no way advance the case of prosecution. The reason that the recoveries were from open place and there is no evidence that recovered clothes and shoes belong to accused and origin and grouping of blood stains has not been determined, is sufficient for us to discard this circumstance. 44. So far as recovery of blood stained Nokia 1108 mobile is concerned, in this regard, PW-16- Investigating Officer Mr. Pramod Swami in his statement stated that accused gave him information regarding recovery of used Nokia 1108 mobile and at his instance said Nokia mobile was recovered vide recovery memo Exhibit-P-87. The witness examined by the prosecution is no else but PW-12- Kesar Singh who is a police official and during cross-examination in his statement he clearly stated that at the time of recovery no-one was called from the vicinity. 45. Further, complainant-PW-1-Gangadhar Mankani had not disclosed the fact of theft of mobile in his report Exhibit-P-1. 46. As per statement of Investigating Officer and other witnesses currency notes of Rs. 6,400/- were recovered from the pocket of deceased. The culprit did not take away the currency notes but as per prosecution he took away the Nokia 1108 mobile. No document has been proved by the prosecution to prove that recovered Nokia mobile belongs to deceased. 46. As per statement of Investigating Officer and other witnesses currency notes of Rs. 6,400/- were recovered from the pocket of deceased. The culprit did not take away the currency notes but as per prosecution he took away the Nokia 1108 mobile. No document has been proved by the prosecution to prove that recovered Nokia mobile belongs to deceased. 47. Not only this as per statement of PW-12- Kesar Singh, the place from where mobile was recovered is the residential house of accused where all family members of accused are residing and it is not in exclusive possession of the accused. As per Forensic Science Laboratory report (Exhibit-P-129) though human blood was found on the mobile and its battery but the blood group could not be determined. 48. Further, PW-1- Gangadhar has stated that his father’s mobile was of Nokia 1109 and PW-3- Kishore stated that his mobile was Nokia 1109 while recovered mobile is Nokia 1108, therefore, on the basis of recovery of mobile, accused-appellant cannot be connected with the alleged crime. 49. Another circumstance is recovery of blood stained Gupti. As per statement of PW-16- Investigating Officer Mr. Pramod Swami, he recovered blood stained iron parkhi from the place of incident vide Exhibit-P-5. As per FSL report (Exhibit-P-129) though human blood was found on the Gupti but blood group remained inconclusive. Similarly on iron parkhi human blood was found but blood group remained inconclusive. Both iron parkhi and Gupti have not been shown to the Medical Officer who conducted the postmortem of body of deceased to ascertain whether injuries found on the body of deceased were inflicted by the said iron parkhi or Gupti, that creates doubt whether iron parkhi recovered from the place of incident itself or Gupti recovered at the instance of the accused from his house were weapons of offence and furthermore, which weapon was used for committing the alleged crime has not been proved by the prosecution. 50. As per statement of PW-12- Kesar Singh, the place from where Gupti was recovered is in joint possession of all family members. As such, it is not in exclusive possession of the accused-appellant. Since blood group remained inconclusive, therefore, on the basis of recovery of Gupti also, accused-appellant cannot be connected with the alleged crime. 51. 50. As per statement of PW-12- Kesar Singh, the place from where Gupti was recovered is in joint possession of all family members. As such, it is not in exclusive possession of the accused-appellant. Since blood group remained inconclusive, therefore, on the basis of recovery of Gupti also, accused-appellant cannot be connected with the alleged crime. 51. So far as the injuries on the hands of accused is concerned, the doctor who examined the accused, has not been examined. The perusal of injury report of accused (Exhibit-P-92), reveals that simple blunt injuries were found on the hands of the accused. Prosecution failed to prove that how the accused can be connected from the presence of injuries with the alleged crime. 52. Accordingly, on the basis of aforesaid injuries also, accused-appellant cannot be connected with the alleged crime. 53. Not only this but prosecution has also failed to prove motive to connect the appellant with the crime. Accordingly, prosecution failed to connect the accused with the alleged crime by completing chain of circumstances. 54. Accused-appellant has also convicted for the offence under Section 25 (1-B) (b) of the Arms Act. As discussed above, the recovery of Gupti is doubtful and the recovery witness in his statement clearly stated that no-one was there apart from him at the time of recovery. Further, the place of recovery was not in exclusive possession of the accused-appellant, therefore, accused-appellant is also entitled for the benefit of doubt qua the aforesaid offence. 55. Accordingly, we find merits in the arguments advanced by the counsel to cause interference in the judgment passed by the learned trial Court and, accordingly, the conviction and sentence of the accused- appellant- Vijay Kumar @ Bijju is set aside. He is acquitted of the offences under Section 302 IPC and Section 25 (1-B) (b) of the Arms Act. He be released forthwith, if not required in any other case. 56. He is acquitted of the offences under Section 302 IPC and Section 25 (1-B) (b) of the Arms Act. He be released forthwith, if not required in any other case. 56. In view of the provisions of Section 437-A Cr.P.C., appellant/s Vijay Kumar @ Bijju is directed to forthwith furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court. 57. We also appreciate the assistance rendered by Mr. Kapil Gupta, learned counsel and direct the Member Secretary, Rajasthan State Legal Services Authority to make payment to learned counsel Mr. Kapil Gupta as per norms towards services rendered by him. 58. With the aforesaid, criminal appeal is allowed.