JUDGMENT : 1.These three criminal appeals arise out of the judgment dated 11.06.2019 passed by learned Additional Sessions Judge No. 16, Jaipur Metropolitan, Jaipur (for brevity, ‘learned trial Court’) in Sessions Case No.01/2018 (33/2015) whereby, the accused- appellants (for brevity, ‘the appellants’) have been convicted and sentenced as under: Under Section 302 /34 IPC :- Life imprisonment with fine of Rs.25,000/- each; in default whereof, two months’ additional imprisonment. Under Section 120 -B IPC :- Two years’ imprisonment with fine of Rs.5,000/- each; in default whereof, one month’s additional imprisonment. 2. Sentences to run concurrently. 3. The relevant facts in brief are that based on a written report dated 09.05.2015 (Ex. P-3) submitted by Shri Gulshan Saini (PW-3), an FIR No. 309/2015 (Ex. P-4) came to be registered at Police Station, Kardhani, District-Jaipur (South) for the offence under Sections 302 /34 and 120-B IPC . It was stated in the written report that yesterday at about 7:30-8:00 P.M., his younger brother-Surendra Saini, upon receiving a call, dropped Shri Navaratan Saini near a park and went somewhere, whereafter, no contact could be made with him. It was further stated that despite efforts, he could not be traced in the night. It was averred that his known informed him at about 7:00-7:20 A.M. today that a dead body was lying near Shantibagh Garden which was found to be of his brother Surendra Saini having a number of incised and stab wounds. It was alleged that the appellants and one Mahendra Tanwar had animosity with his brother and they had threatened him of assassination two days ago and therefore, a doubt was cast upon them of his murder. After investigation, the appellants alongwith co-accused Mahendra Singh Shekhawat were charge- sheeted under , 34 and 120B . Charge against them was framed under the aforesaid sections. They pleaded not guilty and demanded trial. During the course of trial, co-accused Mahendra Singh Shekhawat expired and after trial, the appellants have been convicted and sentenced, as stated hereinabove. 4. Assailing the impugned judgment, learned counsels for the appellants submit that the learned trial Court’s findings are based on conjectures and surmises and it erred in recording their conviction even in absence of any legally admissible evidence against them. They submit that the case is based on circumstantial evidence and there is absence of the complete chain leading to the only conclusion of their guilt. They submit that the case is based on circumstantial evidence and there is absence of the complete chain leading to the only conclusion of their guilt. They submit that the evidence with regard to ‘last seen’ is not creditworthy and it was unsafe to convict them based thereupon. Learned counsels submit that in view of the fact that the recovery of the alleged weapon of offence, i.e., a knife is from an open place and there was absence of blood grouping on it as per the FSL report, it could not have been held that it was the weapon used in commission of the offence. They submit that even otherwise, based on mere recovery, their conviction could not have been recorded/sustained. They further submit that the learned trial Court has gravely erred in holding that the appellants had a motive to eliminate the deceased inasmuch as the prosecution evidence, in this regard, is based on hearsay and is totally unreliable. They, therefore, pray that the appeals be allowed, the judgment impugned dated 11.06.2019 be quashed and set aside and they may be acquitted of the charge framed against them. 5. Per contra, learned Public Prosecutor, assisted by the learned counsel for the complainant, opposing the submissions and supporting the findings recorded by the learned trial Court, submits that the prosecution has been able to set up a complete and unbroken chain of circumstances leading to the only probability of the guilt of the appellants and therefore, the learned trial Court did not err in recording their conviction. He, therefore, prays for dismissal of the criminal appeals. 6. Heard. Considered. 7. Indisputably, death of Shri Surendra Saini was homicidal in nature and the case is based on circumstantial evidence. A perusal of the judgment impugned dated 11.06.2019 reveals that the learned trial Court has relied upon following circumstances to record conviction of the appellants: 1. Last seen. 2. Recovery of the weapon of the offence, i.e., a knife. 3. Recovery of the car used in the commission of the offence. 4. Motive. 1. LAST SEEN:- 8. In this regard, the learned trial Court has relied upon the testimony of S/Shri Navaratan Saini (PW-7), Girdhari Lal Saini (PW-8) and Bablu Saini (PW-20). 9. Last seen. 2. Recovery of the weapon of the offence, i.e., a knife. 3. Recovery of the car used in the commission of the offence. 4. Motive. 1. LAST SEEN:- 8. In this regard, the learned trial Court has relied upon the testimony of S/Shri Navaratan Saini (PW-7), Girdhari Lal Saini (PW-8) and Bablu Saini (PW-20). 9. Before we examine their testimony, it is noteworthy that, while, Shri Girdhari Lal Saini is closely related to the deceased as Shri Surendra was grandson of his Bua, Shri Bablu Saini has admitted, as PW-20, that he was neighbour of the deceased and belongs to the same caste. Thus, being the interested witnesses, their deposition is required to be examined with caution and circumspection. 10. Shri Girdhari Lal Saini (PW-8) has stated that on 08.05.2015 at about 8:00-8:15 P.M., he saw the deceased in the company of appellants near Shanti Garden beside an Alto Car. When confronted, they informed him that they were loitering. He has further stated that in the next morning, he came to know that Surendra was murdered. Upon his cross-examination, he has stated that when, in the morning of 09.05.2015, he reached the place where the dead body was lying, a number of persons including brother of the deceased and his uncle-Nanagram were already present. He has categorically stated that on that very day, he had informed Shri Nanagram that he has seen the deceased in the company of the appellants at Shantibagh Garden; but, denied to have informed the police about it. The another witness Shri Bablu Saini (PW-20) has deposed that on 08.05.2015, at about 7:30-8:00 P.M., he found the deceased to be quarreling with three boys below the ‘Khirni Phatak Pulia’ where an Alto car as also a motorcycle were parked. He has further stated that when confronted, they requested him to leave as they were talking. He has reiterated that on coming to know in the morning of next day that Shri Surendra has been murdered, he had informed Shri Nanagram-uncle of the deceased to have seen the deceased in the company of three-four boys in the previous night. During his cross-examination, he admits that his police statement (Ex.D-8), recorded on 30.05.2015, i.e., after more than 20 days from the date of incident, did not contain the aforesaid averments. During his cross-examination, he admits that his police statement (Ex.D-8), recorded on 30.05.2015, i.e., after more than 20 days from the date of incident, did not contain the aforesaid averments. He further admits that after reading a news item in the newspaper, he came to know of the name of the accused persons whom he saw alongwith the deceased below the pulia on 08.05.2015 but, still, the appellants were not subjected to Test Identification Parade by the police. From the aforesaid testimony, it is apparent that there are improvements in his court statement on the material aspects from the statement recorded under Section 161 Cr.P.C. (Ex. D-8). Moreover, although, both the witnesses, namely: S/Shri Girdhari Lal Saini and Bablu Saini have stated to have seen the deceased in the company of the appellants at about 8:00 P.M. in the night of 08.05.2015 but, their police statement were recorded on 04.06.2015 and 30.05.2015 respectively with no explanation from the prosecution about this inordinate delay. Further, both have stated in unison that they had informed Shri Nanagram-uncle of the deceased in the morning of very next day, i.e., 09.05.2015 when dead body of Shri Surendra Saini was found that they have seen the deceased in the company of the appellants but, conspicuously, Shri Nanagram as PW-4 has not uttered a single word in this regard. His deposition reflects that he has not stated that in the morning of 09.05.2015 when, the dead body of Shri Surendra was found, he was informed either by Shri Girdhari Lal Saini or Shri Bablu Saini to have seen the deceased in the company of the appellants in the previous night. It raises a grave doubt as to veracity of their testimony with regard to have seen the deceased last in the company of the appellants. From the conspectus of aforesaid deposition, we are not convinced that the testimony of S/Shri Girdhari Lal Saini and Bablu Saini is reliable and creditworthy enough to sustain conviction of the appellants. 11. It raises a grave doubt as to veracity of their testimony with regard to have seen the deceased last in the company of the appellants. From the conspectus of aforesaid deposition, we are not convinced that the testimony of S/Shri Girdhari Lal Saini and Bablu Saini is reliable and creditworthy enough to sustain conviction of the appellants. 11. In so far as testimony of PW-7 Navaratan Saini is concerned, he has stated in his examination-in-chief that on 08.05.2015 at about 8:00 P.M. when he, alongwith the deceased Surendra Saini- grandson of her bua, was going to the house of his sister- Smt. Mamta, Shri Surendra received a call from Sonu, Aaditya and others whereupon, he was alighted from the bike and was requested to wait for five minutes. He has averred that after waiting till 9 o’clock, he went to Shri Ramdayal’s shop-his brother, informed him of the entire episode, and when his brother tried to contact Surendra on mobile, his mobile phone was found to be switched off. During his cross-examination, he has stated that his police statement (Ex.D-6) was recorded on 04.06.2015 in which he has disclosed to have informed the investigating agency on 09.05.2015 to have gone with Surendra Saini on 08.05.2015 but, this averment was absent from it. From the aforesaid testimony, it is apparent that he is not a witness of ‘last seen’ but, has stated that the deceased informed him to have received a call from Sonu, Aditya and others at about 8:00 P.M. on 08.05.2015. 12. In this regard, the learned trial court has further failed to appreciate the testimony of Shri Ram Dayal Saini (PW-6)-the elder brother of Shri Navaratan Saini. He has stated in his examination- in-chief that when, at about 8.00 P.M. on 08.05.2015, Surendra Saini had visited his shop, he received a call from Sonu who asked him to meet and thereafter, the deceased as also his younger brother Navaratan Saini left for home of Smt. Mamta. He has further stated that Shri Navaratan came to him at about 9.30 P.M. and informed that Surendra had gone for five minutes with the appellants and co-accused Mahendra dropping him near the park. This statement is in total contradiction with the deposition of Shri Navaratan Saini as PW-7. He has further stated that Shri Navaratan came to him at about 9.30 P.M. and informed that Surendra had gone for five minutes with the appellants and co-accused Mahendra dropping him near the park. This statement is in total contradiction with the deposition of Shri Navaratan Saini as PW-7. Moreover, the learned trial Court has relied upon Ex.P-76 and Ex.P-77, the call record of the mobile number belonging to the appellant Aditya Yadav containing the details of the call made allegedly by him to the mobile number belonging to the deceased in the night of 08.05.2015 at about 20:00:23 and 20:03:24 to corroborate the testimony of the PW-7. However, we do not find any evidence on record to demonstrate that the recipient mobile no.8386087778 belonged to the deceased Surendra Saini. Indisputably, neither the mobile phone of the deceased was recovered during the course of investigation nor, the prosecution has led any evidence to demonstrate that the aforesaid number either belonged to the deceased or, was being used by him at the relevant time. Therefore, in the considered opinion of this Court, the learned trial Court erred in finding the appellants guilty of offence of murder of the deceased on the basis of ‘last seen’ evidence. 2. RECOVERY OF KNIFE - THE WEAPON OF OFFENCE:- 13. As per the postmortem report (Ex.P-28) of the body of the deceased, he has received a number of incised and stab wounds which could be on account of a sharp knife. 14. Although, the prosecution has tried to establish that the appellants tried to hide the knife-the weapon of offence, below a heavy stone; but, it is an admitted position that its recovery was made from an open piece of land accessible to the general public as is reflected from the seizure memo (Ex.P-1) and as also admitted by Shri Mangilal Saini (PW-1)-a witness to the seizure memo, during his cross-examination. The Hon’ble Supreme Court has, in the case of Nikhil Chandra Mondal Vs. State of W.B. ; MANU/SC/0211/2023 , held as under:- 20. The trial Court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. State of W.B. ; MANU/SC/0211/2023 , held as under:- 20. The trial Court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the approach adopted by the trial Court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra- judicial confession. 15. Their Lordships have, in the case of Shivaji Kisan Naravani Vs. State of Maharashtra ; SLP (Crl.) No. 17258/2024 , held as under:- “The prosecution further contends that the appellant’s alleged presence at the crime scene is substantiated by CDR and the recovery of purported murder weapons, including a knife and a grinding stone (Article 24). While the CDR may indicate that the appellant was in the vicinity around the time in question, it does not conclusively link him to the crime. Cell phone location data, at best, establishes proximity; it does not confirm participation or knowledge of an illegal act. The prosecution has not produced any direct evidence—such as eyewitness testimony or forensic material—showing the appellant actively engaging in the offence. As for the recovery of the grinding stone (Article 24), the record reveals that it was found in an open area accessible to multiple individuals. This fact significantly diminishes its probative value. The prosecution must demonstrate not only that the stone was the weapon used, but also that the appellant had exclusive possession or control of it at the relevant time . In the absence of fingerprints, bloodstains conclusively identified as belonging to the appellant, or any other form of forensic linkage, the mere discovery of a potentially incriminating article fails to establish guilt. When weighed against the stringent standards applicable in circumstantial evidence cases, such tenuous connections are insufficient to fix culpability on the appellant beyond reasonable doubt.” 16. Further, the learned trial Court erred in connecting the appellants with the alleged offence with the aid of the knife recovered as, although, in the Forensic Science Laboratory report (Ex. P-91), it was found to contain the human blood but, its grouping remained inconclusive. Further, the learned trial Court erred in connecting the appellants with the alleged offence with the aid of the knife recovered as, although, in the Forensic Science Laboratory report (Ex. P-91), it was found to contain the human blood but, its grouping remained inconclusive. It is a well settled legal principle that in absence of blood grouping, the presence of human blood on the weapon of offence is of no avail. 17. Their Lordships have, in the case of Raja Naykar V. State of Chhattisgarh: (2024) 3 SCC 481 , while dealing with an identical issue, held as under:- “ 26. As per the FSL report, the bloodstains found on the dagger were of human blood. However, the FSL report does not show that the blood found on the dagger was of the blood group of the deceased. Apart from that, even the serological report is not available. 29. It can thus be seen that, the only circumstance that may be of some assistance to the prosecution is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In Mustkeem v. State of Rajasthan: (2011) 11 SCC 724 this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of bloodstained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.” 18. In the backdrop of aforesaid precedential law and the factual context as discussed hereinabove, we find that it was not safe to connect the appellants with the offence of murder of the deceased Surendra Saini on the strength of recovery of the knife. 3. RECOVERY OF CAR USED IN COMMISSION OF OFFENCE:- 19. In this regard, the learned trial court has referred to and relied upon the testimony of S/Shri Girdhari Lal Saini (PW-8), Bablu Saini (PW-20), Ramdayal (PW-6) and Smt. Sushila Devi (PW-5)-mother of the deceased. 20. 3. RECOVERY OF CAR USED IN COMMISSION OF OFFENCE:- 19. In this regard, the learned trial court has referred to and relied upon the testimony of S/Shri Girdhari Lal Saini (PW-8), Bablu Saini (PW-20), Ramdayal (PW-6) and Smt. Sushila Devi (PW-5)-mother of the deceased. 20. So far as testimony of S/Shri Girdhari Lal Saini and Bablu Saini is concerned, we have already held the same not to be reliable albeit with regard to the evidence of ‘last seen’ but, for the same reasons, they are not found to be reliable to connect the appellants with the offence with the aid of recovery of the Alto car. 21. Smt. Sushila Devi (PW-5) has, although, in her examination- in-chief stated that on 8 th , when his younger son Surendra had left for shop and she was alone in the house, the appellants, alongwith co-accused, had frequented the house and had done so once in a white Alto car. She has further stated that they inquired from her as to whether Surendra was at home whereafter, they left. However, during her cross-examination, she admits that she was stating so for the first time before this Court rendering it totally unreliable. Although, Shri Ramdayal Saini has deposed as PW-6 that on 08.05.2015 at about 6:00 P.M., the appellants alongwith Mahendra and two other persons had visited his shop in a white car which was parked in front of the shop and had enquired from him about Surendra; but, his sole testimony is not sufficient enough to record a finding that the recovered Alto car was used by the appellants in commission of the alleged offence in the attending facts and circumstances of the case. Further, the learned trial Court has relied upon the recovery of blood from the car to connect it with the offence. However, as per Ex. P-91-the FSL report, except the human blood found on the piece of steering cover to be of ‘B’ grouping, no grouping could be found on the rest samples and in view thereof, the judgment of the Hon’ble Supreme Court of India in the case of Raja Naykar (supra) applies four corner. Further, the witness to the seizure memo of the Maruti Alto car (Ex. P-30)-Shri Ashok Soni has stated during his cross-examination as PW-18 that the blood lifted from the car was ‘wet’. Further, the witness to the seizure memo of the Maruti Alto car (Ex. P-30)-Shri Ashok Soni has stated during his cross-examination as PW-18 that the blood lifted from the car was ‘wet’. The incident had occurred in the intervening night of 08.05.2015 and 09.05.2015 whereas, the blood samples from the Alto car have been lifted as late as on 01.06.2015 rendering it forensically impossible to let the blood droplets to be wet after this long lapse of time whatsoever might be the weather or other conditions. In view thereof, we find that the learned trial Court has erred in recording the conviction of the appellants based on recovery of blood from the Alto car. Although, in this regard, we agree with the findings recorded by the learned trial Court that the explanation offered by the defence through the testimony of Shri Bhagirath Singh (DW-1) that the subject car met with an accident in Sikar District on the fateful day, was not reliable. But, by this reason, we are not persuaded to hold that this car was used in the commission of offence in absence of the prosecution failing to establish so. 4. MOTIVE:- 22. Since, we have already held that the prosecution has not been able to establish that the deceased was last seen in the company of the appellants or that it has been able to connect the appellants with the murder of the deceased with the aid of recovery of a blood stained knife at the instance of the appellant- Pranvendra Singh or from the recovery of Alto car allegedly used in commission of offence at their instance or a call from the mobile phone of the appellant-Aditya Yadav to the mobile phone of the deceased, the issue of motive is not required to be pondered over deep as it alone is not sufficient to sustain the finding of the conviction. However, we find that the prosecution has not been able to establish, beyond reasonable doubt, that the alleged offence took place on account of quarrel in between the deceased and the appellants with regard to a girl. The prosecution evidence in this regard is based on hearsay and all the witnesses have stated that they have heard that there was dispute in between the deceased and the appellants with regard to a girl. The prosecution evidence in this regard is based on hearsay and all the witnesses have stated that they have heard that there was dispute in between the deceased and the appellants with regard to a girl. In this regard, it may be relevant to mention here that the first Investigating Officer, namely Shri Rajendra Prasad Diwakar (PW-31) had admitted during his cross-examination that since, upon investigation, the subject girl had refused to divulge anything, there was no evidence on record in this regard. He has further admitted that no investigation was conducted by him in this regard from any corner. In similar line is the cross-examination of second Investigating Officer namely Shri Manoj Kumar Gupta (PW- 29). In view thereof, we are not able to sustain the finding of the learned trial Court that the prosecution has been able to establish the motive for commission of the offence. 23. In its landmark judgment in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra ; (1984) 4 SCC 116 , their Lordships have held as under:- “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. 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 & Anr. v. State of Maharashtra where the following observations were made: [SCC para19, 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. v. State of Maharashtra where the following observations were made: [SCC para19, 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.” 24. In view of the aforesaid analysis of the factual and legal aspects, we are of the considered view that the prosecution has not been able to establish the consistent and unbroken chain of circumstances leading unerringly to the only probability of guilt of the appellants in commission of the murder of the deceased Shri Surendra Saini. 25. Resultantly, the appeals are allowed. The judgment dated 11.06.2019 passed by the learned Additional Sessions Judge No. 16, Jaipur Metropolitan, Jaipur in Sessions Case No.01/2018 (33/2015) is quashed and set aside and the appellants are acquitted of the charges framed against them. 26. The appellant Pranvendra Singh @ Sonu shall be released forthwith from Jail if not warranted in any other case. Since, the appellants-Aditya Yadav and Ankit Agrawal are on bail, their bail bonds are discharged. 27. 26. The appellant Pranvendra Singh @ Sonu shall be released forthwith from Jail if not warranted in any other case. Since, the appellants-Aditya Yadav and Ankit Agrawal are on bail, their bail bonds are discharged. 27. In view of the provisions of section 437-A CrPC ( Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellants namely Pravendra Singh @ Sonu, Aditya Yadav, Ankit Agarwal are directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount each within four weeks before the Registrar (Judl.) of this court which shall be effective for a period of six months with the stipulation that in the event of special leave petition being filed against the judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.