JUDGMENT : Anish Kumar Gupta, J. 1. Heard Shri Apul Misra and Shri Sukhvir Singh, learned counsel for both the appellants and Shri Amit Sinha, learned A.G.A. assisted by Ms. Mayuri Mehrotra and Ms. Archana Singh for the State. 2. Capital case No. 19 of 2022 has been filed by Mohd. Shakeel-appellant against the judgement and order dated 3.11.2022 passed by Special Judge (E.C. Act)/Addl. District and Sessions Judge, Farrukhabad whereby he has been convicted in S.T. No. 612 of 2007 arising out of Case Crime No. 1002 of 2007 P.S. Kotwali Farrukhabad District Farrukhabad under section 302/34 I.P.C. and sentenced to death penalty with fine of Rs.50,000/- and in default of payment of fine to go further Rigorous imprisonment for two years. He has also been convicted in S.T. No. 611 of 2011 arising out of Case Crime No. 1011 of 2007 P.S. Kotwali Farrukhabad District Farrukhabad under section 25 of the Arms Act and sentenced to imprisonment for three years Rigorous Imprisonment with fine of Rs.10,000/- and under section 27 of Arms Act he is sentenced to imprisonment for three years Rigorous Imprisonment with fine of Rs.10,000/-, with default stipulation. 3. Capital case No. 2 of 2023 has been filed by Mohd. Kaleem-appellant against the judgement and order dated 3.11.2022 passed by Special Judge (E.C. Act)/Addl. District and Sessions Judge, Farrukhabad whereby he has been convicted in S.T. No. 612 of 2007 arising out of Case Crime No. 1002 of 2007 P.S. Kotwali Farrukhabad District Farrukhabad under section 302/34 I.P.C. and sentenced to death penalty with fine of Rs.50,000/- and in default of payment of fine to further go Rigorous Imprisonment for two years. He has also been convicted in S.T. No. 611 of 2011 arising out of Case Crime No. 1012 of 2007 P.S. Kotwali Farrukhabad District Farrukhabad under section 25 of Arms Act and sentenced to imprisonment for three years Rigorous Imprisonment with fine of Rs.10,000/- with default stipulation. Capital Reference No. -14 of 2022 has also been made by the trial court for confirmation of the death sentence of both the appellants. 4. Since both capital cases and capital reference arising out of a common judgement for the same incident, all were heard together and are now being decided by this common judgement. 5. Capital Reference No. -14 of 2022 has also been made by the trial court for confirmation of the death sentence of both the appellants. 4. Since both capital cases and capital reference arising out of a common judgement for the same incident, all were heard together and are now being decided by this common judgement. 5. The prosecution case in brief is that upon an incident having had taken place in the night intervening 25/26.07.2007, wherein three ladies have been murdered, a First Information Report was lodged by one Mohd. Shakeel s/o Sabbir Ahmad. First Information Report was scribed by Dr. Dinesh Chandra Agnihotri on the dictation of Shakeel (complainant). The allegation in the First Information Report was that in the house of his cousin (Chacha's son) Mohd. Kaleem in the night intervening 25/26.07.2007 at around 4:00 A.M., certain unknown persons had committed murder of the wife of his brother-Kaleem, namely, Yaasmeen, mother, namely Noorjahan and sister, namely Nasreen and that on the body of the three deceased there was evidence of the fact that they were killed by bullets and there were also other marks of injuries caused by sharp edged weapons. It was stated in the First Information Report that the brother of the first informant, namely Kaleem was also grievously injured and he was sent to Lohiya Hospital for medical treatment. Upon the First Information Report having been lodged, investigation commenced. From the spot a recovery memo of the recovered articles was prepared. On the spot the recovery was made by the Investigating Officer (IO) of two empty cartridges of 315 bore and one empty cartridge of 12 Bore. The other articles which were taken into possession were plain soil and the blood stained soil. Thereafter, on the same date, inquest report was prepared and the three dead bodies of Nasreem, Yaasmeem and Noorjahan were sent for postmortem. As per the case of the prosecution, Kaleem was taken to the hospital by the Police and he was subsequently arrested on the statements made by Mohan and Kamal. As per prosecution case Mohan and Kamal had stated that Kaleem had made certain extra judicial confession before them and therefore they knew the fact that Kaleem had committed the crime. The police also came to know on the statements of Mohan and Kamal that the co-accused Pradeep Dhobi, Lallan @ Lalla and Shakeel were also involved in the crime. As per prosecution case Mohan and Kamal had stated that Kaleem had made certain extra judicial confession before them and therefore they knew the fact that Kaleem had committed the crime. The police also came to know on the statements of Mohan and Kamal that the co-accused Pradeep Dhobi, Lallan @ Lalla and Shakeel were also involved in the crime. On 27.07.2007, Shakeel and Kaleem were arrested by the police. Thereafter on the pointing of the two accused, Shakeel and Kaleem, from the house of Shakeel one country made pistol of 315 bore was recovered. On the pointing out of accused Shakeel and Kaleem, a Banka which was buried in the same courtyard and covered by some loose bricks was recovered. The recovery memo was thereafter prepared, which is Exh. Ka-4. It may be noted that when the First Information Report was lodged, it had given rise to Case Crime No. 290 of 2007 under Section 302, 307 I.P.C. For the recovered country made pistol, Case Crime No. 1012 of 2007 under Section 4/25 of the Arms Act and for the recovered Banka, Case Crime No. was 1011 of 2007 under Section 25/27 of the Arms Act were registered. The injury on the body of Kaleem was examined on 26.07.2007 itself. Postmortem of the dead bodies were conducted on 26.07.2007. The case of the prosecution further is that the fire arms and the bullets were sent for forensic examination to the Ballistic Expert. The samples of the bullets and the fire arms were got received in the Forensic Laboratory on 03.11.2007 and the Banka was received on 04.11.2007. After taking the statements of the various witnesses the Police concluded the investigation and submitted charge-sheet against all the accused persons, namely, Kaleem, Shakeel, Pradeep, Lallan @ Lalla and Mukesh @ Sanjeev on 16.08.2007 under Sections 147, 148, 149, 302 I.P.C. With regard to Shakeel, a charge-sheet was also submitted on 17.08.2007 under Section 25/27 of the Arms Act and with regard to Mohd. Kaleem, charge-sheet under Section 4/25 of the Arms Act was submitted on 17.08.2007. On the aforesaid charge-sheets, cognizance was taken by the Chief Judicial Magistrate, Farrukhabad on 05.09.2007 and the case was committed to the Court of Sessions Judge where charges were framed on 25.01.2008 by the learned Additional Sessions Judge, Court No.1, Farrukhabad, under Sections 147, 148, 302/149 I.P.C., against Mohd. On the aforesaid charge-sheets, cognizance was taken by the Chief Judicial Magistrate, Farrukhabad on 05.09.2007 and the case was committed to the Court of Sessions Judge where charges were framed on 25.01.2008 by the learned Additional Sessions Judge, Court No.1, Farrukhabad, under Sections 147, 148, 302/149 I.P.C., against Mohd. Kaleem, Shakeel, Pradeep, Mukesh @ Sanjeev and Lalla @ Lallan and the Sessions Trial was numbered as 612 of 2007. 6. With regard to the case under the Arms Act under Section 25/27 vis-a-vis Shakeel, case was registered as Sessions Trial No. 611 of 2007. With regard to the accused Kaleem a case under Section 4/25 of the Arms Act was registered as Sessions Trial No. 612 of 2007. 7. The accused persons denied the charges and claimed trial. However, during trial since the accused, namely, Mukesh alias Sanjeev and Pradeep were absconding, therefore, their trial had been separated on 19.11.2016 and 4.11.2019 respectively and only accused Kaleem, Shakeel and Lallan alias Lalla have been tried for the offences under sections 147, 148, and 302/149 I.P.C. Accused Kaleem has also been tried under section 4/25 Arms Act and accused Shakeel has also been tried for the offence under section 25/27 Arms Act. 8. During trial in order to prove its case the prosecution had examined as many as 14 witnesses. There were two court's witnesses, on the orders of the court, who were examined during trial. The defence had also examined six witnesses in support of its case. 9. The P.W. 1 Shakeel s/o Sabbir, who was the first informant has proved the contents of the First Information Report and has stated that Kaleem, is his cousin, who is the accused in the case in respect of an incident, which occurred in the night intervening 25/26.07.2007 at 4:00 A.M. in which his wife Yasmeen, mother- Noorjahan and sister- Nasreen, have been murdered by firing bullets upon them. He stated that the First Information Report was written on his dictation by Sri Dinesh Chandra Agnihotri. He had stated in his statement that as the wife of his cousin, Kaleem, was of a bad character, therefore, Kaleem and the co-accused Shakeel had in a planned manner, murdered Yasmeen, the wife of Kaleem; the mother of Kaleem- Noorjahan and his sister- Nasreen. He had stated in his statement that as the wife of his cousin, Kaleem, was of a bad character, therefore, Kaleem and the co-accused Shakeel had in a planned manner, murdered Yasmeen, the wife of Kaleem; the mother of Kaleem- Noorjahan and his sister- Nasreen. He further stated that after lodging of the First Information Report he had gone to Jaipur and what happened in the case thereafter was not known to him. In his cross-examination, he has categorically stated that he had not seen the incident and he had not seen the assailants. He also stated that he had no knowledge about the incident. He has stated that when he reached the house of his brother, Kaleem then he was not there at his house but had been taken to the Lohiya Hospital, and therefore, he had straight away gone to the Police Station to get the report lodged. He has further stated that he did not know that Kaleem was grievously injured in the incident and if this fact was recorded in his statement given under Section 161 Cr.P.C. by the police, he is not aware. He had also no knowledge about panchayatnama of the dead bodies. 10. The PW-2 Haji Mohd. Ahmad has stated in his examination-in-chief that Pradeep was not known to him. The person who was in the Court, namely Shakeel s/o Qadir was known to him. He had also stated that Lallan @ Lalla and Mukesh @ Sanjeev were also not known to him. Kaleem, who was present in the court, was also not known to him. He has stated that he had only heard about the fact that Kaleem's wife had been killed around two years back. He had stated that he heard about the murder of Noorjahan, Yasmeen and Nasreen. He has also denied that on 27.07.2007, Pradeep had informed him that Kaleem had developed illicit relations with his sister-in-law and his wife Yasmeen was all the time troubling him because of this illicit relations, therefore, he committed murder of Yasmeen, Noorjahan and Nasreen. Ultimately, the PW-2 was declared hostile. 11. P.W.-3 Mohd. Qamar, who was examined by the prosecution to prove the fact that an extra judicial confession was made by Mohd. Shakeel and Mohd. Kaleem. However, he has denied the fact that any extra judicial confession was made before him. This witness was also declared hostile. 12. Ultimately, the PW-2 was declared hostile. 11. P.W.-3 Mohd. Qamar, who was examined by the prosecution to prove the fact that an extra judicial confession was made by Mohd. Shakeel and Mohd. Kaleem. However, he has denied the fact that any extra judicial confession was made before him. This witness was also declared hostile. 12. P.W.-4 Gaffar, was also produced by the prosecution but he had stated that on that date he was in Jaipur, and therefore, he was also declared hostile. 13. P.W.-5 Arif, proved the inquest reports. 14. P.W.-6 Prakash Narayan, is the Constable, who has proved the registration of the case under the Arms Act. He has stated in his statement that before the accused were taken for the recovery, no statement was recorded and no public witness was present at that time. 15. P.W.-7 Sub-Inspector, Balvant Raj, was examined by the prosecution for the purposes of proving the Chik F.I.R. He has stated that the court of the Chief Judicial Magistrate was 5-6 Kilometres away from the Police Station but the Chik F.I.R., was sent to the Court of the Chief Judicial Magistrate on 06.08.2007 i.e. after 11 days of the incident. 16. P.W.-8 Dr. Ramesh Chandra examined the injuries on the body of the accused Kaleem and in his opinion they were simple in nature. He stated that the injury no.1 was simple and injury 2 was to be kept under observation. He has stated that injury no.1 could have been caused due to fall and injury no.2 may also have been caused if the injured hit the corner of a Staircase. 17. P.W.-9 Sri Hakim Singh is the Sub-Inspector in whose presence the recovery of the country made pistol and the Banka was made. Sub-Inspector, Sri Hakim Singh has proved the recovery as was made with regard to the country made pistol of 315 bore at the indication of Shakeel. He has also proved the recovery of the Banka at the indication of Kaleem. He has very categorically stated that the recovery was made from a populated area and that the house, where recovery had taken place was in the midst of the city, but he has stated that no independent witness came forward despite request from the Police personnel. He has also categorically stated that prior to the recovery no statement of the accused was recorded. He has also categorically stated that prior to the recovery no statement of the accused was recorded. He has also proved recovery of the mobile phone No. 9918932015 of kaleem. He has also proved the call details according to which the accused Kaleem used to talk to the accused Pradeep on his Mobile No. 9918267600 and that he has stated that just prior to the incident they had talked to each other. 18. P.W.-10 Kanhaiya Lal, who was posted as an assistant at the place where the postmortem took place has proved the fact that the postmortem report was scribed by the doctor in his own hand writing. 19. P.W.-11 Yash Karan, is the Sub-inspector in whose presence the bodies were sealed/stitched and he has proved the inquest reports. 20. P.W.-12 Sri Ashok Kumar, the Station House Officer was the Investigating Officer of the case and he has stated that he had investigated the case and he has stated that in First Information Report it was stated that some unknown persons had committed the murder and on the statements of Mohan and Kamal, he came to know that Mohd Kaleem, Pradeep Dhobi, Lallan, Shakeel in a planned manner committed murder of Yasmeen, Narseen and Noorjahan by firing on them. He has also stated that there was a lacerated injury on the head of Shakeel (It appears that he wanted to mention the name of Kaleem). He has also stated that the two accused Shakeel and Kaleem were arrested on the same date and they had admitted their guilt. He has further stated that recoveries of the country made pistol and the Banka were made on the pointing out of Shakeel and Kaleem. When the statement of the SHO (PW-12- Ashok Kumar) was being recorded, he has stated that in the court only Banka, one cartridge of 12 bore and cartridges of 315 bore were presented. PW-12 died thereafter and he was never cross-examined. 21. P.W.-13 Suraj Singh is the investigating Officer for the offences under the Arms Act. He has stated that he has no knowledge as to whether the recovered country made pistol was sent for Forensic investigation. He has also stated that before the recovery was being made, statements of the two accused Shakeel and Kaleem were not recorded. 21. P.W.-13 Suraj Singh is the investigating Officer for the offences under the Arms Act. He has stated that he has no knowledge as to whether the recovered country made pistol was sent for Forensic investigation. He has also stated that before the recovery was being made, statements of the two accused Shakeel and Kaleem were not recorded. He has also stated that the fire arms recovered were used in the crime as there was a report of the Forensic laboratory. He has stated that in his cross-examination that it is wrong to say that site plan was prepared in the Police Station. 22. P.W. 14, Dr. Yogendra Singh, the Radiologist has proved the post mortem report of the three deceased Yasmeen, Noorjahan, Nasreen. 23. Court Witness C.W. -1 Ram Lalli, who is the mother of accused Pradeep has been examined to confirm the age of the accused Pradeep at the time of the incident. 24. C.W.-2 Munna Lal, the father of Pradeep was discharged on the application made by him to the effect that he is not in a position to give any statement as he had lost his memory. 25. D.W.-1 Raunak in his examination has deposed that Yasmeen was his daughter and married to Kaleem and there was no dispute between them. Kaleem, he has stated, was innocent. He stated that it was wrong to say that Kaleem had illicit relation with his Saali (sister-in-law) and it was also wrong to say that she became pregnant due to this illicit relation. It is also wrong to say that because of the illicit relation Yasmeen used to quarrel with Kaleem. Kaleem used to come to his house once in a year and stay there for a day or two. He had also stated that the nand (sister-in-law) of Yasmeen, Nasreen was young but he could not know her age. He also deposed that he did not know that Nasreen had developed illicit relation therefore Kaleem was trying to do away with her. He deposed that he informed the police that he was the father of Yasmeen. He also deposed that he did not know that who had killed Yasmeen and it was wrong to say that he was trying to save Kaleem due to pressure. 26. D.W. -2 Shareef is the neighbour of Kaleem and has deposed that his house is near the house of Kaleem. He also deposed that he did not know that who had killed Yasmeen and it was wrong to say that he was trying to save Kaleem due to pressure. 26. D.W. -2 Shareef is the neighbour of Kaleem and has deposed that his house is near the house of Kaleem. He came to know about the killing of wife, mother and sister of Kaleem on the next morning. He deposed that in this case Kaleem was falsely implicated. Police had enquired about this from the local residents and all had denied the involvement of Kaleem in the crime but police had not agreed. In his cross examination he deposed that he had seen the dead bodies in the morning after the incident. He heard the sounds of three to four rounds of firing at about 4 a.m. which was coming from the house of Kaleem. Next morning he went to the house of Kaleem but had not entered in the house. He entered in the house alongwith the police and saw the three dead bodies lying on the floor. He had stated that he knew Kaleem and did not know the other accused persons. He further had stated that the incident occurred in the house of Kaleem and at that time Kaleem was present in his house. 27. D.W.-3 Altaf deposed that he was residing in the house of Sabir on rent near the house of Kaleem. In the night he heard the sounds of fire arms at about 3 – 4 a.m. and had gone to the roof and from there saw that a mob had collected in front of the house of Kaleem but the latter was not present there. In his cross examination this witness had stated that in the evening of the incident at about 8 – 8.30 p.m. Kaleem was not present in his house. Thereafter he came there or not he could not tell. He did not go to the spot and he had no information about the incident. 28. D.W.-4 Raju deposed that his house was situate near the house of Kaleem. The incident was about 9 years old and he remembered that in the night when the incident had occurred at about 3 – 4 a.m. he had heard the sounds of fire arm and he had reached on the spot alongwith the others. 28. D.W.-4 Raju deposed that his house was situate near the house of Kaleem. The incident was about 9 years old and he remembered that in the night when the incident had occurred at about 3 – 4 a.m. he had heard the sounds of fire arm and he had reached on the spot alongwith the others. He deposed that there was a rumour that some culprits had committed robbery and committed the murder of the three ladies. He deposed that one day before the incident he had gone to the house of Kaleem and his wife had told him that Kaleem would come by the evening next day. He deposed that they all informed the police that incident had been caused by some culprits. In his cross examination he stated when he went to the house of Kaleem he saw the dead bodies of his wife, mother and the sister. He had stated that it was wrong to say that Kaleem had himself committed the murder. He had stated that he did not know that kaleem had received any injury in the incident. He had stated that Kaleem was in jail in the murder case of his wife, mother and sister but he was wrongly detained in jail. He stated that it was wrong to say that he was deposing to save Kaleem, he being his neighbour. 29. D.W.-5 Qadar Kawwal has deposed that Shakeel was taken by the police on 26.7.2007 from his shop and when he went to the police station the Inspector got his signature on a paper and said that your son will be released in the evening. Thereafter police had falsely challaned his son. He deposed that police had not recovered the mobile of Kaleem nor he had seen it. In his cross examination he had stated that Shakeel was present in the house in the night of the incident. He had further stated that when police had taken Shakeel from the shop he was not present there and he was informed by some other persons. It is wrong to say that he is deposing to save the accused. 30. D.W.-6 Moharram has deposed that the house of Kaleem was situate at a distance of 700 – 800 meters from his factory. It is wrong to say that he is deposing to save the accused. 30. D.W.-6 Moharram has deposed that the house of Kaleem was situate at a distance of 700 – 800 meters from his factory. In the night of the incident Kaleem had gone to his house at about 4 a.m. Some persons had reached his factory and had called for Kaleem saying that something had happened in his house. He deposed that he reached the house of Kaleem after about 15 –20 minutes and saw that Kaleem was lying in a fainted condition at his main gate and there were injuries on his head. 31. The five accused persons got their statements recorded under section 313 Cr.P.C. The accused Kaleem gave his additional statement in writing which is there on record as Paper No. 224-A. 32. The trial court after considering the entire evidence on record had acquitted the accused Lallan @ Lalla of all the offences under Sections 147, 148, 302/149 I.P.C. upon granting him the benefit of doubt. However, the trial court on 13.10.2022 found Mohd. Kaleem & Mohd. Shakeel in Sessions Trial No. 612 of 2007 guilty. This case arose out of Case Crime No. 1002 of 2007 under Sections 302/34 I.P.C. and acquitted them for the offences u/s 147, 148 I.P.C. Accused Mohd. Kaleem in Sessions Trial No.611 of 2007 arising out of Case Crime No. 1012 of 2007 was also found guilty under Section 4/25 of the Arms Act. Similarly, Mohd. Shakeel in Sessions Trial No. 611 of 2007 arising out of Case Crime No. 1011 of 2007 under Section 25/25 Arms Act was found guilty. 33. They were heard on the question of sentence and on 03.11.2022 after looking into all the mitigating and aggravating circumstances sentenced Kaleem and Mohd. Shakeel in Sessions Trial No. 612 of 2007 arising out of Case Crime No. 1002 of 2007 with death penalty and they were also fined Rs. 50,000/- each. In default, they had to undergo two years rigorous imprisonment. They were directed to be hanged till death. With regard to Sessions Trial No. 611 of 2007 arising out of Case Crime No. 1012 of 2007, Mohd. Kaleem was convicted under Section 4/25 of the Arms Act with rigorous imprisonment of three years and he was fined for Rs. 10,000/-. In default, they had to undergo two years rigorous imprisonment. They were directed to be hanged till death. With regard to Sessions Trial No. 611 of 2007 arising out of Case Crime No. 1012 of 2007, Mohd. Kaleem was convicted under Section 4/25 of the Arms Act with rigorous imprisonment of three years and he was fined for Rs. 10,000/-. In the event of the non-payment of fine, he was to undergo further six months of rigorous imprisonment. Again, with regard to the accused Shakeel in Case Crime No. 1011 of 2007, under Section 25 of the Arms Act, he was sentenced for three years rigorous imprisonment with fine of Rs. 10,000/-and in default of payment of fine, six months further rigorous imprisonment was ordered. He has also been sentenced under section 27 of Arms Act for a period of three years rigorous imprisonment with fine of Rs.10,000/- and in default of payment of fine further six months rigorous imprisonment had to be undergone. 34. Upon order of sentence of death having been imposed, Additional Sessions Judge, referred the matter on 03.11.2022 to this Court and the reference was numbered as Capital Reference No. 14 of 2022. The appellants Mohd. Shakeel and Mohd. Kaleem had filed their separate appeals. 35. Learned counsel for the appellants has made the following submissions :- 20201 (i) The recovery as has been made by the police, itself becomes doubtful as in the recovery memo, it has been stated that at the indication of the accused Shakeel from his own courtyard in the north-southern corner, when certain loose bricks were removed, a country made pistol of 315 bore was recovered. Thereafter from the house of Shakeel itself, it has been stated in the recovery memo that Kaleem, who was the co-accused, in the very same courtyard in the south-western corner after removing certain bricks, got recovered a Banka (gandasa). Learned counsel for the appellants states that if the site-plan is seen then it clearly shows that the country made pistol and the banka was recovered from the house of Kaleem. Learned counsel for the appellants further relying upon the judgments of the Supreme Court in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 ; Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110 and in Rajesh & Anr. Learned counsel for the appellants further relying upon the judgments of the Supreme Court in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 ; Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110 and in Rajesh & Anr. vs. State of Madhya Pradesh in Criminal Appeal No(s). 793-794 of 2022 and specifically relying upon paragraphs 53 to 57 and 70 in the case of Ramanand @ Nandlal Bharti (supra) has submitted that the recovery under section 27 of the Evidence Act itself was doubtful as the accused were in the police custody and before the police proceeded for the recovery, no memo regarding the disclosure statement was prepared which was required to be compulsorily prepared in the presence of independent witnesses. Also, it has been stated that before the police proceeded for recovery of the weapon, no effort was made to have two independent witnesses. Learned counsel for the appellants, therefore, states that the recoveries on the pointing out of the appellants was itself doubtful and they could not have been convicted on such a recovery. (ii) Learned counsel for the appellants has stated that there was recovery of country made pistol of 315 bore, used in the crime, along with a Banka but there is definite evidence of the fact that there were pellets embedded in the body of Yasmeen which could be possible only on the firing by a 12 bore pistol, which fact is also reflected in the post mortem report. (iii) Learned counsel has submitted that the accused made extra judicial confessions before Mohan and Kamal and on their statements the appellants Kaleem, Shakeel, Pradeep, Lallan and Sanjeev were involved in the crime but no endeavour was made by the prosecution to get Mohan and Kamal examined during trial to prove the guilt of the appellants. Learned counsel submits that to give credence to the story of extra judicial confession, one Mohd. Qamar (PW-3) was produced and he has specifically, while appearing in the witness box, denied the fact that any extra judicial confession was made to him. Learned counsel for the appellant relied upon the statement of Mohd. Learned counsel submits that to give credence to the story of extra judicial confession, one Mohd. Qamar (PW-3) was produced and he has specifically, while appearing in the witness box, denied the fact that any extra judicial confession was made to him. Learned counsel for the appellant relied upon the statement of Mohd. Qamar (PW-3), which is being reproduced here as under :- ^^'kdhy iq= 'kCchj gkftj vnkyr dyhe ds rkÅ ds csVs gSA ?kVuk ds ckn gkftj vnkyr eksgEen dyhe o gkftj vnkyr 'kdhy ?kVuk ds ckn eq>s ugha feys FksA dyhe vkSj 'kdhy us eq>ls ;g ugha dgk Fkk iqfyl okyksa ls esjh vPNh tku igpku gSA eSa vki ls en~n pkgrk gw¡A ge yksaxksa us gh ;kLehu] uwjtgk¡ o dqekjh uljhu dh gR;k xksyh ekj dj nh FkhA** (iv) Learned counsel for the appellants has further submitted that the prosecution has come up with a case that the empty cartridges, bullets and Banka were sent to the Forensic Laboratory. He submits that there is no evidence of the fact as to when the sealed empty cartridges, country made pistol and the banka were actually sent and as to whom they were sent. He has submitted that the FSL reports dated 14.11.2007 and 5.2.2008 mention that the samples of empty cartridges, pistol and banka were brought by one Laxman Lal but neither Laxman Lal was produced nor any effort was made by the prosecution to prove the fact that the samples which were sealed were actually sent to the Forensic Laboratory. Learned counsel for the appellants states that the missing link, as to who took the empty cartridges, the country made pistol and Banka to the Forensic Laboratory, when goes unproved then the whole case becomes doubtful. (v) Learned counsel for the appellant has further submitted that if the statement in chief of Sub-Inspector Hakim Singh, who had proved the recovery, is seen then it becomes clear that the bundle of which the seal was opened in the Court contained the country made pistol of 315 bore and that the other bundle, when was opened, contained the banka. He states that the Investigating Officer Ashok Kumar in the witness box has stated that in his presence only the sample of plain soil; blood stained soil; banka, one empty cartridge of 12 bore; and one Gandasa were produced in the Court. He states that the Investigating Officer Ashok Kumar in the witness box has stated that in his presence only the sample of plain soil; blood stained soil; banka, one empty cartridge of 12 bore; and one Gandasa were produced in the Court. Learned counsel for the appellants, therefore, submits that when the Investigating Officer in the witness box stated that the country made pistol and one empty cartridge of 315 bore were not produced, the only conclusion would be that the material exhibits were being tampered with and no reliance could be placed on the evidence which has been produced and relied upon by the prosecution. (vi) Learned counsel for the appellants has submitted that when there were five accused persons and only two weapons were introduced in the prosecution story then the whole case becomes doubtful and it was not certain as to whether the deaths were the result of the firing by which of the assailants. He submits that it is not clear as to who exactly was the person responsible for the firing by 12 bore pistol. He also submits that the 12 bore pistol was never recovered. (vii) Learned counsel for the appellants has submitted that the motive in the case was also not clear. PW-1 had stated that the character of the wife of appellant Kaleem was not good and therefore the appellant-Kaleem with the assistance of Shakeel and other co-accused had done-away with his wife. He had stated that, however, the motive viz.-a-viz. PW-2 was changed and he had submitted that because Kaleem had an affair with the sister-in-law (sali) and this affair was known to his wife Yasmeen, the mother Noorjahan and sister Nasreen therefore they were done away. Learned counsel for the appellants further states, relying upon the statement of the accused Kaleem as has been recorded under section 313 Cr.P.C. and as had also been written down by him in Paper No.224-A, that the appellant was never present on the spot and that he was in fact engaged in the work of embroidery at his work-place. He submits that this statement of Kaleem is also corroborated by the statement of DW-6 Moharram Ali who was the employer of the accused Kaleem and also stated that when the whole incident had taken place, someone had come to call Kaleem and thereafter Kareem left his work-place and had gone home. He submits that this statement of Kaleem is also corroborated by the statement of DW-6 Moharram Ali who was the employer of the accused Kaleem and also stated that when the whole incident had taken place, someone had come to call Kaleem and thereafter Kareem left his work-place and had gone home. Learned counsel for the appellants has further relied upon the statement of DW-1 Raunak Ali who is the father-in-law of Kaleem and has very categorically stated that the accused Kaleem was in no manner involved in the crime and Kaleem was in fact injured during the course of a fall and that he had been taken to the hospital. (viii) Learned counsel for the appellants thereafter submitted that the case was of a circumstantial evidence and relying upon Sharad Birdichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 : (1984) 4 SCC 116 he submits that when the chain of circumstances is not completed then the crime could not be proved. He, therefore, submits that the appellants deserve to be acquitted. Relying upon the decision of Sharad Birdichand Sarda (supra) learned counsel for the appellants states that there were five salient points which are to be seen for the conviction of an accused which are as follows : "1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. The fact so established should be consistent only with the hypothesis of the guilt of the accused; 3. The circumstances should be of conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." These ingredients have to be necessarily there for the trial court to come to a conclusion that the accused were guilty. (ix) Further learned counsel for the appellants submits that the motive was not there; there was no extra judicial confession proved; the evidence as was produced by the prosecution do not speak of any person who had last seen the accused either entering or leaving the place, then the case which was based on circumstantial evidence could not be proved and the appellants ought to be acquitted. Learned counsel for the appellants further submitted that the provisions of section 106 of the Evidence Act would not apply as the accused-appellant was not in the house and that there was no knowledge which would specifically make him liable to discharge his burden. He submits that absolutely no evidence was produced by the prosecution to prove that any of the accused was present at the place of incident. To bolster his submissions, learned counsel for the appellants relied upon a judgment of this Court in Jail Appeal No.116 of 2019 (Chatthoo Chero vs. State of U.P.) decided on dated 7.4.2022, and has specifically relied upon paragraph 36 of it, which is being reproduced here as under :- "36. The circumstance proved by the prosecution is that the appellant was not alone with his wife in the house when she was murdered. Admittedly, grown up children i.e. sons and daughters were also present; the witnesses of fact and independent witnesses have not been able to prove that the relation between the appellant and his wife was strained; the theory of strained relationship driving the appellant to commit suicide few days earlier of the incident for money was not proved by the witnesses examined by the prosecution, including, independent witnesses. The motive has not been proved nor assigned for commission of the offence." (x) With regard to the fact that recovery did not complete the chain of evidence, learned counsel for the appellants has relied upon paragraph 42 of the judgment dated 7.4.2022 passed in Jail Appeal No.116 of 2019, which is also being reproduced here as under :- "42. With regard to Section 27 of the Evidence Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. With regard to Section 27 of the Evidence Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 is the information leading to discovery and not any opinion formed on it by the prosecution." (xi) Learned counsel for the appellants further submitted that if the entire circumstances are seen, even if the appellants were to be convicted, no case was made out for awarding the capital sentence as it would definitely not fall in the rarest of the rare cases. 36. Per contra, learned A.G.A. for the State submits that the accused Kaleem was having illicit relationship with his sister-in-law, which was being objected by his wife. Therefore, the accused Kaleem in a pre-planned manner had called the other co-accused persons in his house in the night on phone and had murder his wife, sister and mother by causing injuries by fire arms and Banka etc. Learned A.G.A. for the State further submits that coupled with the aforesaid motive, there are confessional statements made by the accused Kaleem and Shakeel and on their indication the recovery of one country made pistol of 315 bore and one Banka was made from the house of Kaleem himself. From the evidence as available on record, there is no evidence of any forcible entry of any outsider in the house nor any robbery has been committed, which indicates that it was only on the planning by the accused Kaleem that he called the other persons and opened the door for them and thereafter all of them had assaulted the deceased persons. The accused Kaleem has not explained the injuries received by him and it was only an afterthought after recording his statement u/s 313 Cr.P.C. that he had made a further written statement in Paper No. 224-A, wherein he had taken a plea of alibi and submitted that when he got the intimation about the incident, he came back to the house and due to the sudden shock he fell down and sustained the injuries due to the fall. 38. 38. Learned A.G.A. for the State further submits that the recovery of the weapons used in the crime cannot be disbelieved only on the ground that there is no public witness to the recovery. The testimony of the Police personnel with regard to recovery and recovery memo is sufficient and the same cannot be doubted. From the FSL report, it has been categorically proved the weapons recovered were used in commission of the crime. 39. Learned A.G.A for the State further submits that the judgement relied upon by the appellants in Ramanand @ Nandlal Bharti (supra) is a new dimension given by the Apex Court that first time in the year 2020, the same is not in consonance with the law as declared by the Apex Court in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 . Learned A.G.A. therefore submits that the judgement of the Apex Court in Ramanand @ Nandlal Bharti (supra), has been subsequently followed in the judgement of Subramanya (supra) and Rajesh and another vs. State of M.P. 2023 SCConline SC 1202. 40. Having heard the rival submissions made by learned counsel for the parties, this Court has also carefully gone through the records and the judgement of the trial court. These are the appeals filed by the appellants u/s 374(2) of the Code of Criminal Procedure as well as the references made by the trial court u/s 366 Cr.P.C. 41. The Apex in Munna Pandey vs. State of Bihar : 2023 SCC OnLine SC 1103, has dealt with the manner in which the appeals as well as the references u/s 366 Cr.P.C. is required to be dealt with as under: "58. According to Section 366 when a Court of Session passes a sentence of death, the proceedings must be submitted to the High Court and the sentence of death is not to be executed unless it is confirmed by the High Court. Section 367 then proceeds to lay down the power of the High Court to direct further enquiry to be made or additional evidence to be taken. Section 368, thereafter, lays down the power of the High Court to confirm the sentence so imposed or annul the conviction. One of the powers which the High Court can exercise is one under Section 368(c) of the CrPC and that is to “acquit the accused person”. Section 368, thereafter, lays down the power of the High Court to confirm the sentence so imposed or annul the conviction. One of the powers which the High Court can exercise is one under Section 368(c) of the CrPC and that is to “acquit the accused person”. Pertinently, the power to acquit the person can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction. To that extent, the proceedings under Chapter XXVIII which deal with “submission of death sentences for confirmation” is a proceeding in continuation of the trial. These provisions thus entitle the High Court to direct further enquiry or to take additional evidence and the High Court may, in a given case, even acquit the accused person. The scope of the chapter is wider. Chapter XXIX of the CrPC deals with “Appeals”. Section 391 also entitles the appellate court to take further evidence or direct such further evidence to be taken. Section 386 then enumerates powers of the appellate court which inter alia includes the power to “reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial”. The powers of the appellate court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of the CrPC. 59. Ordinarily, in a criminal appeal against conviction, the appellate court, under Section 384 of the CrPC, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the Trial Court. It is not necessary for the appellate court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified. The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under Section 366 of the CrPC. The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under Section 366 of the CrPC. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with Sections 367 and 368 respectively of the CrPC and the provisions of these Sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. It is true that, under the proviso to Section 368, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under Section 367 CrPC and, consequently, the Court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed. [See : Bhupendra Singh (supra)]" (emphasis supplied) 42. The Malimath Committee of Judicial Reforms has discussed the paramount duty of the Court. The relevant observations of the Committee are as under: "69. Malimath Committee on Judicial Reforms discussed the paramount duty of Courts to search for truth. The relevant observations of the Committee are as under:— (a) The Indian ethos accords the highest importance to truth. The motto “Satyameva Jayate” (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”. Our epics extol the virtue of truth. Malimath Committee on Judicial Reforms discussed the paramount duty of Courts to search for truth. The relevant observations of the Committee are as under:— (a) The Indian ethos accords the highest importance to truth. The motto “Satyameva Jayate” (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”. Our epics extol the virtue of truth. (b) For the common man truth and justice are synonymous. So when truth fails, justice fails. Those who know that the acquitted accused was in fact the offender, lose faith in the system. (c) In practice however we find that the Judge, in his anxiety to demonstrate his neutrality opts to remain passive and truth often becomes a casualty. (d) Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore, truth should become the ideal to inspire the courts to pursue. (e) Many countries which have Inquisitorial model have inscribed in their Parliamentary Acts a duty to find the truth in the case. In Germany Section 139 of the so called ‘Majna Charta’, a breach of the Judges' duty to actively discover truth would promulgate a procedural error which may provide grounds for an appeal. (f) For Courts of justice there cannot be any better or higher ideal than quest for truth." 43. Therefore, from the above observations it is crystal clear that while dealing with the reference u/s 366 Cr.P.C., it is the duty of the Court not only to see whether order passed by the Sessions Judge is correct but to examine the case for itself and even direct a further inquiry or take the additional evidence if the Court considers it desirable. The reference u/s 366 Cr.P.C. is a continuation of the trial. Whereas, the scope of the appeals is limited to the extent of verifying the correctness of the judgement passed by the Sessions Judge. The reference u/s 366 Cr.P.C. is a continuation of the trial. Whereas, the scope of the appeals is limited to the extent of verifying the correctness of the judgement passed by the Sessions Judge. Since, in the instant case there is a reference by the Sessions Judge as well as there are two independent appeals by the convicted accused persons then, it will be appropriate to deal with the case in its entirety and it should not be limited to the grounds urged by the appellants. This is the case where three ladies, the wife, sister and mother of the appellant Kaleem, have been murdered by causing injuries through the fire arms as well as a sharp edged weapon. The incident has taken place between 3:00 to 4:00 A.M. in the night intervening 25/26.07.2007 and the accused Kaleem was also found in the house who was taken to the hospital by the SHO concerned on receipt of the intimation with regard to the incident at 5:30 A.M. on 26.07.2007. 44. From perusal of the facts of the case as well as the evidence, as noted above, the instant case is based on the circumstantial evidence. A three judge Bench of Apex Court in Sharad Birdhichand Sarda (supra) in paragraphs 152, 153 and 154 has held as under: “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 : AIR 1972 SC 656 ] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 : AIR 1972 SC 656 ] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 45. In Subramanya (supra) the Apex Court relying upon the Sharad Birdhichand Sarda (supra) has observed in paragraph 49 as under: “49. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal proposition. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances there are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused” 46. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused” 46. From the above observations made by the Apex Court, it is settled proposition of law that in the case of circumstantial evidence the chain of circumstances has to be proved in such a manner which leads to the conclusion that the accused and none else is responsible for the offence alleged against him. Chain has to be completed in all respect. 47. From analysis of the circumstances of the present case the first and foremost circumstance against the appellants is that they made an extra judicial confession to Mohan and Kamal and also to P.W. 3 Mohd. Qamar and admitted their involvement in the crime. The prosecution has failed to examine Mohan and Kamal as witnesses in the instant case though Mohd Qamar has been examined as P.W. 3 but he has not supported the prosecution story with regard to any extra judicial confession made to him by the appellants and he has categorically denied that any extra judicial confession was made before him. The said witness was declared hostile. However, nothing could be brought by the prosecution in his cross examination to prove the extra judicial confession. The prosecution story is based on the statement made by Mohan and Kamal with regard to extra judicial confession and the Investigating Officer has arrested the appellants on the basis of such statement. Since the prosecution failed to examine them, thus in our considered opinion the prosecution has utterly failed in proving the said extra judicial confession made by the appellants, therefore that cannot form the basis for their conviction at all. 48. Another aspect of the matter is that the motive to commit such murder of the three ladies who are the wife, mother and sister of the appellant Kaleem. Though P.W. 1 has stated about the illicit relationship of appellant Kaleem with his sister-in-law and the prosecution has relied upon the same as a motive for commission of the offence, no other witness has supported the version narrated by P.W. 1. Though P.W. 1 has stated about the illicit relationship of appellant Kaleem with his sister-in-law and the prosecution has relied upon the same as a motive for commission of the offence, no other witness has supported the version narrated by P.W. 1. P.W. 2 Hazi Mohammad has categorically denied any such illicit relationship between Kaleem and his sister-in-law and the father of victim Yasmeen D.W. 1 Raunak has categorically denied any illicit relationship of Kaleem with his sister-in-law who happens to be another daughter of D.W. 1 Raunak and he has also denied any involvement of accused Kaleem in the entire incident. 49. Another aspect of the matter with regard to the motive is that the sister of Kaleem namely Nasreen was having illicit relationship. However, the prosecution has also failed to prove the said fact beyond reasonable doubt, therefore, though the aforesaid motive has been attributed to the appellant Kaleem the prosecution has failed to prove the said motive beyond reasonable doubt. However, the prosecution has utterly failed to prove or assign any motive to the other appellant Shakeel to cause the said incident. Thus, the prosecution has not been able to establish any motive to the appellants to commit the murder of the three ladies, who are wife, mother and sister of appellant Kaleem. 50. With regard to last seen theory of the prosecution that the appellant Kaleem was found on the spot after the incident alongwith the dead bodies and he had also sustained some injuries on his head and from the place of incident he had been carried to the Hospital by the police personnel where he was treated, we can only say that none of the witnesses has deposed against the appellant Kaleem that he was present on the spot at the time of incident. Rather the appellant Kaleem had explained his presence on the spot after the incident stating that he was actually working and doing the work of embroidery in the factory owned by D.W. 6 Moharram which was situated about 700 to 800 meters away from his house. We find that someone had had reached the factory and informed Kaleem that something had happened in his house. Thereafter Kaleem reached the spot and upon looking at the dead bodies of his wife, mother and sister had fainted and had fallen down on the stairs and had thereby sustained injuries on his head. We find that someone had had reached the factory and informed Kaleem that something had happened in his house. Thereafter Kaleem reached the spot and upon looking at the dead bodies of his wife, mother and sister had fainted and had fallen down on the stairs and had thereby sustained injuries on his head. D.W. 6 Moharram has categorically supported this explanation of the appellant Kaleem. However, the prosecution has not been able to prove and produce any witness with regard to the fact that the appellant Kaleem was seen or was present in the house at the time when the incident had taken place. Therefore, in the considered opinion of this Court the prosecution has utterly failed to prove the circumstance of “last seen” with the deceased persons prior to the incident. 51. Another circumstance which has been brought on record by the prosecution is the recovery of country made pistol on the disclosure and indication of Shakeel from the courtyard of appellant Kaleem and recovery of Banka/Gandasa on the disclosure and indication of appellant Kaleem from his own courtyard. With regard to the relevance, the prosecution has tried to establish that after their arrest, the accused persons admitted their involvement in the crime and on their disclosure the police had recovered the aforesaid weapons used in the crime on the pointing out of the appellants. With regard to the prosecution statement as well as the recovery of the weapons at the indication of the accused persons -appellant, the Apex Court in the case of Delhi Administration Vs. Bal Krishan (1972) 4 SCC 659 , analysing the concept, use and evidentiary value of recovered articles has observed as under: “7. Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to confession or not. Under sections 25 and 26 of the Evidence Act, no confession made to a police officer whether in custody or not can be proved as against the accused. But Section 27 is by way of a proviso to these sections and a statement, even by wayof confession, which distinctly relates to the fact discovered is admissible as evidence against the accused in the circumstances as stated in Section 27. But Section 27 is by way of a proviso to these sections and a statement, even by wayof confession, which distinctly relates to the fact discovered is admissible as evidence against the accused in the circumstances as stated in Section 27. …….” 52. In Mohd. Inayatullah Vs. State of Maharashtra (1976) 1 SCC 828 , the Apex Court dealing with the scope and object of Section 27 of the Evidence Act has held in paragraph 12 and 13 as under: 12. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. 13. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. 13. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown [AIR 1929 Lah 344 : ILR 10 Lah 283 (FB)] ; Rex v. Ganee [AIR 1932 Bom 286 : ILR 56 Bom 172 : 33 Cri LJ 396] ). Now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor [ AIR 1947 PC 67 : 74 IA 65 : 48 Cri LJ 533] ; Udai Bhan v. State of Uttar Pradesh [ AIR 1962 SC 1116 : 1962 Supp (2) SCR 830 : (1962) 2 Cri LJ 251] ).” 53. Relying upon the earlier decisions the Apex Court in Anter Singh Vs. State of Rajasthan (2004) 10 SCC 657 has analysed and summed up the various requirement under section 27 of the Evidence Act, as follows: “16. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” 54. Subsequently, in State (NCT of Delhi) Vs. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” 54. Subsequently, in State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11SCC 600, the Apex Court has considered the divergent views and approaches and thereupon has observed as under: “120. The history of case-law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kottaya case [ AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] which has been described as a locus classicus, had set at rest much of the controversy that centred round the interpretation of Section 27. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council's decision has not been questioned in any of the decisions of the highest court either in the pre-or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State. 121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State. 121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case [ AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70, para 10) “clearly the extent of the information admissible must depend on the exact nature of the fact discovered” and the information must distinctly relate to that fact. As pointed out by the Privy Council in Kottaya case [ AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70, para 10) “clearly the extent of the information admissible must depend on the exact nature of the fact discovered” and the information must distinctly relate to that fact. Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) “Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.” (emphasis supplied) We have emphasised the word “normally” because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words: (AIR p. 70, para 10) “If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.” Then, Their Lordships proceeded to give a lucid exposition of the expression “fact discovered” in the following passage, which is quoted time and again by this Court: (AIR p. 70, para 10) “In Their Lordships' view it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (emphasis supplied) 55. The Apex Court in a recent judgement in Ramanand @ Nandlal Bharti (Supra) in paragraphs 52 and 53 has held as under: “52.Section 27 of the Evidence Act, 1872 reads thus: 27. The Apex Court in a recent judgement in Ramanand @ Nandlal Bharti (Supra) in paragraphs 52 and 53 has held as under: “52.Section 27 of the Evidence Act, 1872 reads thus: 27. How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” (Emphasis supplied) 56. In Subramanya (Supra) the Apex Court has reaffirmed the observation made by the Apex Court in Ramanand @ Nandlal Bharti (supra) and has observed as under: “77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. 78. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” 57. Thus from the aforesaid observations as made in the recent judgements in Subramanya (supra) and Ramanand @ Nandlal Bharti (supra) the law has been settled that once the accused who is in custody of the police shows his willingness to make disclosure statement and recovery of the weapons used in the crime, the primary duty of the Investigating Officer is that he should call two independent witnesses at the police station itself and once the two independent witnesses arrive at the police station thereafter in their presence the disclosure statements of the accused has to be recorded and thereupon on the basis of disclosure statement the police authority has to proceed for recovery of the weapons at the indication of the accused persons. Two independent witnesses are required to be brought in to establish the recovery of such weapons and such disclosure statement would be beyond reasonable doubt. Two independent witnesses are required to be brought in to establish the recovery of such weapons and such disclosure statement would be beyond reasonable doubt. If the aforesaid procedure is not followed during recording of disclosure statement as well as during the recovery of weapons such recovery of weapon cannot be relied upon for the conviction of the accused persons solely on the basis of said recovery. 58. In view of the aforesaid settled position of law, if we analyse the evidence available on record as has been alleged in the instant case the accused Kaleem and Shakeel the appellants herein were arrested on the basis of extra judicial confession which is not established in the case and thereupon in the police custody it is alleged that they made the confessional/ disclosure statements and on their indication the weapons of crime were recovered. However in the entire process the Investigating Officer has utterly failed to involve the independent witnesses which is a mandate of law as observed by the Apex Court in Ramanand @ Nandlal Bharti (supra) and in the entire process no disclosure statement was ever recorded and only on the basis of alleged disclosure statement, the recovery of the weapons had been made without any independent witnesses. Such recovery cannot be said to be a valid recovery for the purpose of conviction of the appellants herein and on the basis of such recovery they cannot be convicted. 59. Thus from the aforesaid analysis it is crystal clear that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants. They have failed to prove the motive and also the Extra judicial confession. The prosecution also failed to establish if any witness had “last seen” the appellants with the deceased prior to the incident. The alleged recovery of weapons at the indication of the accused persons for want of independent witness, as has been observed by the Apex Court in Ramanand @ Nandlal Bharti (supra) and Subramanya (supra), also becomes irrelevant. In the considered opinion of the court, therefore, the findings recorded by the trial court are manifestly erroneous and are not sustainable in the light of the aforesaid discussions. In the considered opinion of the court, therefore, the findings recorded by the trial court are manifestly erroneous and are not sustainable in the light of the aforesaid discussions. Thus in the considered opinion of the Court, since the prosecution has failed to prove its case against the appellants beyond reasonable doubt, therefore, they are entitled for benefit of doubt and they deserve to be acquitted from all the charges levelled against them. 60. For the aforesaid reasons both the appeals are allowed and both the appellants are acquitted of the charges levelled against them in the aforesaid sessions trials. The capital reference made by the trial court for confirmation of death sentence is also rejected. The appellants Mohd. Shakeel and Mohd. Kaleem are in jail. They shall be set at liberty forthwith unless wanted in any other case, subject to furnishing the bonds for their appearance before the Supreme Court in compliance of Section 437A Cr.P.C. in the event any appeal is preferred against this judgement. 61. Office is directed to send a copy of this judgement to the trial court within a week for compliance and the lower court’s record be remitted back to the court concerned within the same period of time.