JUDGMENT 1. Both the appeals have been filed by the appellant/accused being aggrieved by the common judgment dated 12.1.2010 passed by the Additional Sessions Judge, Narsinghgarh, District – Rajgarh in Sessions Trial No. 138/2009, therefore, both the appeals are being decided by this common judgment. 2. By the impugned judgment, the appellants have been convicted under sections 302 r/w 34, and 120-B r/w 34 of IPC and sentenced to undergo rigorous life imprisonment with fine of Rs. 1,000/- each and in default of not depositing fine, they shall further undergo rigorous imprisonment for 1 year each and for the offence u/s 201 r/w 34 of IPC to undergo rigorous Imprisonment for a term of 7 years with fine of Rs. 500/- each and in default of not depositing fine, further undergo 6 months rigorous imprisonment each. 3. Brief fact of the case is that on 23.1.2009 at about 11.00 am, Karan Singh Jat (PW-4) gave merg intimation (Ex-P/6) to police station – Pachor by stating that he came to know that in Badigaon Umariya Road near Dargah, one dead body is lying, which is smelling. Accordingly, merg No. 05/2009( Ex.-P/6) was registered. Thereafter, Sub-Inspector S.R. Yadav (PW-14) went to the spot and prepared spot map (Ex-P/5) and seized pouch of “Range ghutka” and iron Buckle and prepared seizure Memo (Ex. P/2) and also prepared inquest panchanama Ex-P/4.. It was found that a handkerchief is tied in the neck of deceased and in the neck, below handkerchief black coloured ligature mark was found.. Dr. R.K. Jain (PW12) conducted postmortem of the deceased at Primary Health Centre, Pachore and as per postmortem report (Ex-P/30), injuries found over the dead body were ante-mortem and caused between 24 hours to 3 days and cause of death was asphyxia which was due to strangulation and homicidal in nature. Thereafter, offence under section 302/201 of I.P.C. was registered against the unknown person. During investigation. Chunnilal (PW-9), father of the deceased identified the deceased as his son Mangilal through his clothes and photographs (Ex.- P/14 to Ex.-P/26). 4. Prosecution case in further is that the appellants, in order to commit loot of Rs. Thereafter, offence under section 302/201 of I.P.C. was registered against the unknown person. During investigation. Chunnilal (PW-9), father of the deceased identified the deceased as his son Mangilal through his clothes and photographs (Ex.- P/14 to Ex.-P/26). 4. Prosecution case in further is that the appellants, in order to commit loot of Rs. 5000/- from Mangilal (deceased), hatched conspiracy and mixed the sleeping pills in the food and liquor and when Mangilal fell down being inconspicuous, then appellant Ramesh and Jagdish took Mangilal in the jungle of village Badi in a motorcycle and killed him by throttling his neck through handkerchief and hided his dead body. SubInspector S.R. Yadav (PW-14) recorded confessional statement of the accused persons and recovered one mobile phone and cycle of the deceased from the possession of appellant Ramesh. Wrapper of sleeping pills was recovered from accused Kalabai and cash of Rs. 2500/- had been recovered from the possession of appellant Jagdish. Seized cycle and mobile phone were identified by father of the deceased during test identification parade. 5. After completion of the investigation, charge-sheet was filed and charges under sections 120-B/34, 302/34 and 201/34 of IPC were framed by the trial Court. The appellants abjured their guilt. The prosecution examined as many as 15 witnesses while the defence did not examine any witness. After conclusion of the trial, on appreciating the evidence available on record, the trial Court convicted and sentenced the appellants as mentioned herein above. 6. Learned counsel for the appellants preferred both the appeals by stating that there is no eye witness in the instant. The entire case is based upon the circumstantial evidence, but the chain of the circumstances is not completed. Looted currency notes have not been recovered from the possession of the appellants. The handkerchief which was used for murder, has not been sent for examination to forensic laboratory or finger print bureau. The trial Court has erred in convicting on the ground of recovery of very common articles like cycle and mobile phone. The trial Court has not properly considered the material contradictions and omissions appearing in the statements of the prosecution witnesses. There is nothing on record to convict the appellant, even though, the trial Court convicted the appellant, which is perverse and illegal. The prosecution has failed to prove its case beyond reasonable doubts. The trial Court has not properly considered the material contradictions and omissions appearing in the statements of the prosecution witnesses. There is nothing on record to convict the appellant, even though, the trial Court convicted the appellant, which is perverse and illegal. The prosecution has failed to prove its case beyond reasonable doubts. Father of the deceased did not lodged missing person report in respect of the deceased. Under these circumstances, learned counsel prays that the impugned judgment be set aside and the appellants be acquitted from all the charges as leveled against them. 7. On the other hand, learned counsel for the respondent / State has opposed the prayer made by counsel for the appellants and prays for its rejection by submitting that the trial Court, after marshaling of the evidence, has passed the impugned judgment; there is no perversity or illegality in the findings recorded by the trial Court, hence both the appeals be dismissed. 8. Heard learned counsel for the appellants and perused the record. 9. We find that the following questions have emerged for consideration: i) Whether death of the deceased is homicidal in nature or not ? ii) Whether the appellants committed the offence of murder of the deceased or not ? iii) Whether the impugned judgment passed by the Additional Sessions Judge, Narsinghgarh, District – Rajgarh suffers from any illegality or error in convicting and sentencing the appellants for the offence U/s 302/120-B, 201 read with section 34 of IPC or not ? 10. Dr. R.K. Jain (PW-12) who conducted the postmortem examination of the dead body of the deceased stated that on 23.1.2009, he was posted at Primary Health Centre, Pachor. On examination of the dead body, he found that on the wrists of the right hand of the deceased, “Om and Mangilal” were tattooed. Handkerchief was found tied around the neck of the deceased. Ligature mark was found below the thyroid and it covered the whole neck. Contusion admeasuring 3 x 3 cm in size was found on the left side of forehead and bruise was also found on the left side of his chin. In the opinion of the doctor, cause of death of the deceased was due to asphyxia, which was due to strangulation. The death was homicidal in nature. Death period was between 24 hours to 3 days prior to the postmortem. 11. In the opinion of the doctor, cause of death of the deceased was due to asphyxia, which was due to strangulation. The death was homicidal in nature. Death period was between 24 hours to 3 days prior to the postmortem. 11. From perusal of the records, it reveals that there is no evidence available on record, which shows that the injuries sustained by the deceased were caused by himself or sustained in accident. Thus, there is no reason to disbelieve the findings given by Dr. R.K. Jain that death of the deceased was homicidal in nature. 12. It is clear that there is no eye witness of the alleged incident. As per the statement of father of the deceased Chunnilal (PW-9), his son Mangilal went to market for purchasing some articles for worship and he gave five currency notes of Rs.1000/- each ( in total Rs. 5000/-) to Mangilal. Mangilal left the home with his cycle and mobile phone, but did not come back for next 22 – 25 days. Chunnilal admits in para 6 of cross-examination that he did not lodge any missing person report regarding missing of his son Mangilal. Conduct of Chunnilal appears to be unnatural and strangeful. There is no explanation as to why he did not make any complaint or lodged missing person report immediately after missing of the deceased. The prosecution did not produce any relevant evidence regarding last scene of the deceased with the appellants or any other person, therefore, absolutely there is no direct evidence available on record, even the evidence of last seen is not available in the instant case and the entire case of the prosecution is based upon the circumstantial evidence. 13. The principle of circumstantial evidence is reiterated in the case of Nizam and another v. State of Rajasthan reported in (2016) 1 SCC 550 , in which it has been held as under : “8 Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence.” 14. In State of Uttar Pradesh v. Shyam Behari and another reported in (2009) 15 SCC 548 referring to the case of Gambhir v. State of Maharashtra reported in (1982) 2 SCC 351 , the Supreme Court has held as under : “The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (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 probabilities the crime was committed by the accused and none else. (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any order hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See v. State of Maharashtra, AIR 1982 SC, 1157)” 15. In the instant case, as per the statement of Sub-Inspector S.R. Yadav (PW-14), he recorded the confessional statements of the appellants (Ex.-P7, Ex-P/28 and Ex.-P/32). Constable Bhanwarsingh (PW-11) is the witness of memorandum statement of appellant Jagdish Ex.-P/28. Constable Rameshchandra (PW-13) is the witness of memorandum statement of appellant Kalabai (EX-P/32), but both are the police constable and they are subordinate to Sub-Inspector S.R.Yadav (PW-14). Although prosecution has examined Rodsingh (PW-8), but he categorically admits in para 5 of his cross-examination that he did not know that what conversation was made between the appellant Ramesh and the police officials. Although prosecution has examined Rodsingh (PW-8), but he categorically admits in para 5 of his cross-examination that he did not know that what conversation was made between the appellant Ramesh and the police officials. He also admits that he is an illiterate person and he signed all the documents as per the directions given by the police personals, therefore, sole independent witness Rodsingh (PW-8) is not duly corroborated with the memorandum statement (Ex.-P/10) allegedly deposed by appellant Ramesh. The prosecution has not given any satisfactory explanation, as to why the independent witness was not taken for proceedings of recording of memorandum statements and recovery memorandum in respect of appellants no.1 and 2, therefore, in absence of the independent witness, all these memorandum statements and the recovery based upon it, appears to be very doubtful. 16. Rodsingh (PW-8) witness of seizure memo Ex.-P/11 admits in para 7 and 8 of his cross-examination that the alleged cycle was seized from the gallery, which was open and accessible place to all. 17. Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Jeet Singh reported in (1999) 4 SCC 370 held as under : “There is nothing in section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others. It would vitiate the evidence under Section 27 of the Evidence Act. “ 18. Under these circumstances, it is obvious that the prosecution has failed to prove the circumstances regarding memorandum statements of the appellants under section 27 of the Indian Evidence Act and the recovery based upon their statements. Even all these circumstances alone are not sufficient to complete the chain of circumstances to prove their guilt. 19. It is also noteworthy that during the investigation, the investigating officer did not obtain any bills of the seized mobile phone and cycle from the family members of the deceased. It may be piece of material evidence Allegedly, wrapper of medicine has been recovered from the possession of appellant Kalabai, but the Investigating Officer has not collected any evidence that from where, such medicine was purchased by the appellant. It may be piece of material evidence Allegedly, wrapper of medicine has been recovered from the possession of appellant Kalabai, but the Investigating Officer has not collected any evidence that from where, such medicine was purchased by the appellant. Sub-Inspector S.R. Yadav (PW-14) admits in his cross-examination that normally, such type of medicine is available in any of medicine shop. As per the statement of S.R. Yadav (PW-14), he recovered cycle from the possession of appellant Ramesh through seizure memo Ex.P/13 and the same was identified by Babu Kha (PW7), Rodsingh (PW-8) and Chunnilal (PW-9), but their statements are very doubtful. Babu Kha (PW-7) admits in his cross-examination that he does not know the company name of seized mobile phone and cycle. The same was also admitted by Atmaram (PW-6) who put seal of Sarpanch on identification memo (Ex.-P/8- Ex-P/9), but he admits that he is not the Sarpanch. 20. It is also gathered that the prosecution has not collected any specific evidence regarding the seized mobile phone through expert about the tower location call details during the relevant period of the incident, even no evidence regarding the IEMI number has been collected by the prosecution; it creates doubt upon the case of the prosecution. No evidence regarding tower location of the deceased has been proved by the prosecution. 21. It found from the record that allegedly, the appellants had murdered the deceased for the purpose of committing loot of Rs. 5000/-. As per the statement of Chunnilal, he gave five currency notes of Rs. 1000/- each to deceased Mangilal, but no currency note of Rs. 1000/- has been recovered from the possession of any of the appellant. Surprisedly, the trial Court did not frame any charge under section 397 of IPC against the appellants and even the respondent / State did not challenge the order of framing of charge. 22. The next important factor, which was pointed out by learned counsel for the appellant is that the prosecution has failed to prove the place of the incident, where actually it was taken place as alleged by the prosecution. Nothing is available on record, as to how the Investigating Team approached the present appellants. 22. The next important factor, which was pointed out by learned counsel for the appellant is that the prosecution has failed to prove the place of the incident, where actually it was taken place as alleged by the prosecution. Nothing is available on record, as to how the Investigating Team approached the present appellants. It is alleged that appellant Ramesh used motorcycle for carrying the deceased from the house of appellant Kalabai to the place of incident, but no finger prints or blood stains have been found over the seized motorcycle. Even, the handkerchief was recovered from the dead body of the deceased, but the seized handkerchief was not sent for chemical examination or examination of finger print expert to clarify as to whose finger print was found on the seized handkerchief. 23. Apart from the aforesaid, it is clear from the record that important circumstances are missing in the chain. The conditions laid down in the form of principles as laid down by Hon'ble Supreme Court have not been satisfied in the instant case and the prosecution has not fulfilled essential requirement of criminal case, which rests directly on the circumstantial evidence. No conclusion can be drawn that guilt of the appellants has been established. The circumstances are not of conclusive in nature and they do not exclude several other possible hypothesis and the chain of circumstances is not also complete. In such circumstances,it appears that the trial Court has not correctly appreciated the evidence. The prosecution has miserably failed to prove that the appellants have murdered the deceased. The conviction of the appellants are not based upon the legal evidence, therefore, is not maintainable in law. As the prosecution has failed to prove the charges leveled against the appellants by proceeding evidence or chain of circumstances beyond reasonable doubt, therefore, all these three appellants are entitled for benefit of doubt. 24. Accordingly, both the appeals succeed and hereby allowed. Conviction and sentence imposed upon the appellants are hereby set aside. The appellant Kalabai is on bail; her surety bond and bail bond stands discharged. Appellants Ramesh and Jagdish are in jail; they be released from the jail forthwith, if not required in any other offence. Fine amount, if deposited, be refunded to the appellants. The order regarding disposal of the property as pronounced by the trial Court, is confirmed. 25. The appellant Kalabai is on bail; her surety bond and bail bond stands discharged. Appellants Ramesh and Jagdish are in jail; they be released from the jail forthwith, if not required in any other offence. Fine amount, if deposited, be refunded to the appellants. The order regarding disposal of the property as pronounced by the trial Court, is confirmed. 25. A copy of this judgment along with the records of the trial Court be sent back to the concerned Court for information and necessary compliance.