JUDGMENT [ENTITY], J.
1. [ENTITY] and [ENTITY] were committed to the Court of Sessions on the charge that on 21st April, 1999 they committed the murder of [ENTITY] an employee of one [ENTITY] a share broker. Charges under [SECTION], [ACT] (hereinafter referred to as the [ACT]) were framed against them. The learned Additional Sessions Judge came to the conclusion that the prosecution had proved the entire link in the chain of circumstances leading to no hypothesis other than that of guilt. He convicted them under [SECTION] as well as under [SECTION], [ACT] and sentenced them to life imprisonment and further to undergo rigorous imprisonment for a period of three years under [SECTION], [ACT] and a fine of Rs. 10,000/- in default to further undergo R.I. for five months. The sentences were to run concurrently and benefit of [SECTION] of the [ACT] was accorded to them.
2. Aggrieved by the order of conviction and sentence, appeal has been preferred by the appellants, primarily on the ground that the prosecution miserably failed to discharge its duty in linking, in the chain, the circumstance that injuries Nos. 2 and 3 could be caused by the knife Ex. P3 alleged to have been recovered on the disclosure of appellant No. 1 or that injury No. 1 could be caused by the iron rod allegedly recovered at the instance of appellant No. 2.
3. Prosecution relied on number of circumstances to prove its case against the appellants. Those circumstances can be summarised thus: (i) [ENTITY], the deceased was employee of [ENTITY] (PW11). [ENTITY] was a share broker. He,had a business dealing with appellant [ENTITY]. [ENTITY] owed more than Rs. one lac to [ENTITY]. [ENTITY] deputed [ENTITY] to collect the money. [ENTITY] provided the deceased with TVS Moped No. DL-4S V 9117. Deceased [ENTITY] was present in the house of [ENTITY] at about 1.45 p.m. [ENTITY] talked to deceased on telephone at the house of [ENTITY]. [ENTITY], (PW 8) also talked to the deceased on telephone at the house of [ENTITY]. [ENTITY] (PW 8) on the telephone directed the deceased to visit the house of [ENTITY] resident of same area i.e. Janakpuri. [ENTITY] informed [ENTITY] that he would be making payment to the deceased. Deceased [ENTITY] did not reach the house of [ENTITY] nor came back till 6.00 p.m. At about 6.00 p.m. [ENTITY] contacted [ENTITY], who informed that payment to the deceased was made at about 3.00 p.m. and thereafter he left. [ENTITY] when could not be contacted, a missing report was lodged on 21st April, 1999 itself at P.S. Paschim Vihar. Next day, [ENTITY] lodged FIR against the deceased on the specific allegation that deceased had collected Rs. 1.15 lacs in cash from [ENTITY] at about 3.00 p.m. but had neither reached his house nor reported for duty. He was missing. [ENTITY] suspected that deceased deliberately disappeared with the money. FIR under [SECTION], [ACT] was accordingly registered against the deceased on 22nd April, 1999.
4. That investigation on the above facts led to the following conclusions:
(i) That the diseased [ENTITY] was last seen with [ENTITY].
(ii) The motive for murder was that [ENTITY] had not paid money to the deceased though told to [ENTITY] that he had paid the money and deceased left his house with money at 3.00 p.m.
(iii) That [ENTITY] and [ENTITY] in order to dispose of the body of the deceased borrowed car from [ENTITY] (PW 3) and [ENTITY] (PW 4) on the night of 21st April, 1999 at about 9.30 p.m. on the pretext that wife of [ENTITY] was not well and that she was to be taken to Gurudwara.
(iv) That the said car was returned to PWs 3 and 4 on the following day i.e. 22nd April, 1999 at about 7.30 a.m.
(v) That pursuance to the disclosure statement of [ENTITY], knife Ex. P3 was recovered from a room of his house. That subsequently on 27.4.1999 blood stains were lifted from the floor of the room as well as from the scrapping of the wall. Blood stains were also observed on the bed sheet which according to PW 23 and PW 24 had been washed, therefore, the blood stains were not apparently visible. On the disclosure of [ENTITY], involvement of his brother [ENTITY] was also found, hence [ENTITY] was arrested.
(vii) On the disclosure of accused persons Moped and the helmet were recovered. On the disclosure of [ENTITY], iron rod was recovered. Blood stains were also lifted from the back seat cover of the Maruti car.
5. The case of the prosecution admittedly is based on circumstantial evidence. To bring home the guilt of the appellants, prosecution examined as many as 24 witnesses.
6. Admittedly the deceased was an employee of [ENTITY] (PW 11). The visit of [ENTITY] to the house of [ENTITY] on the fateful day i.e. 21st April, 1999 is not seriously in dispute. The last seen circumstance has, to our mind, been established by the testimony of [ENTITY] (PW 8) and [ENTITY] (PW 11). Mr. [ENTITY], the amices Curiae has not seriously challenged following circumstances i.e. the presence of [ENTITY] in the house of [ENTITY] on 21st April, 1999 at about 1.45 p.m. In fact, [ENTITY] (PW 11) was declared hostile. He resoled from his earlier statement but the fact of deceased going to the house of [ENTITY] to collect money, he reiterated. PW 11 admitted that deceased [ENTITY] was present in the house of [ENTITY] at 1.45 p.m. Similarly, [ENTITY] (PW 8) stated that he talked on telephone to the deceased [ENTITY] at about 1.45 p.m. in the house of [ENTITY]. and gave him instructions to meet [ENTITY] at Janakpuri. This part of the testimony of PW 8 as well as of PW 11 has not been seriously challenged. This proves beyond doubt that at about 1.45 p.m. on 21st April, 1999 the deceased [ENTITY] was with [ENTITY] in later's house. Having held that deceased was last seen with accused, to our mind, by itself is not sufficient to bring home the guilt of the accused. This is one of the circumstances in the chain. Supreme Court in the case of [PRECEDENT], , held that the sole circumstance that deceased was last seen in the company of accused is not sufficient to sustain conviction.
7. We have to see now, whether the prosecution in this case, which is based on circumstantial evidence has been able to complete the chain of events in order to bring home the guilt of the appellants. The challenge pertains to the recovery of alleged weapons of offence and its linking with the crime. Mr. [ENTITY] challenged the recoveries at the alleged disclosure of [ENTITY] and [ENTITY]. He also assailed the lifting of blood from the room and of lifting of blood from the rear seat cover of the Maruti car. He seriously disputed the recovery of helmet and iron rod. Mr. [ENTITY] further contended that the alleged recovery of Moped from open space is no recovery in the eye of law. Before we take up the question of recovery of weapons of offence and its linking with the crime, we would like to deal first with the rest of the objections as raised by Mr. [ENTITY] pertaining to disclosure, recovery and lifting of blood.
8. [ENTITY] appearing as PW 3 said that her car was borrowed by both the appellants herein, whereas when confronted with her statement Ex. PW 3/DA she admitted that only [ENTITY] came to borrow the car. This shows she tried to make improvement in her statement in order to implicate both the appellants. Had [ENTITY] also accompanied [ENTITY] to borrow the Maruti car it would have been so reflected in her statement Ex. PW 3/DA. Similarly, [ENTITY], (PW 4) contradicted himself when he stated that both the accused persons came to his house and asked for his Maruti car on the pretext that wife of [ENTITY] was sick and she had to be taken to the Gurudwara. When subjected to cross-examination he had to admit that he did not state so when his statement Ex. PW 4/DA was recorded. Even otherwise it has come on record that [ENTITY] had a Maruti Van. Being a friend of [ENTITY] in the normal course they would have asked why [ENTITY] was not taking his wife in his own Maruti Van. From the testimonies of PW 3 and PW 4 the impression which emerges as [ENTITY] had no vehicle of his own and, therefore, came to borrow the Maruti car of PW 3 and PW 4. The story of borrowing of the Maruti car from PW 3 and PW 4 does not inspire confidence.
9. As regard lifting of blood stains from the house of the appellant No. 1 i.e. from the corner of the floor and by scratching the wall and on bed sheet and from the back seat cover of the Maruti car Ex. P1, no cogent evidence has been placed on record to link the lifting of blood stains from the house of accused [ENTITY]. [ENTITY] was interrogated by calling him to police station on 26.4.1999, and thereafter police let him off. No search of his house was conducted on 26th April, 1999. It was only on 27.4.1999 an expert from CFSL was called namely Dr. [ENTITY] (PW 16) who visited a house bearing No. BA-84/B where from he lifted blood stains from the floor and by scratching the wall. But that house admittedly did not belong to [ENTITY]. Moreover, murder is stated to have taken place on 21st April, 1999, no body in his senses after murdering would allow the blood stains on the floor as well as on the wall of his room for almost six days i.e. up to 27th April, 1999 in order to enable the police to lift the same. Moreover, when the blood stains were lifted by the CFSL expert no independent witness was associated. In the case of [PRECEDENT], Apex Court observed that when disclosures, discoveries and arrest are made in the absence of independent witness it creates a doubt or suspicion which must go to the benefit of the accused. Dr. [ENTITY], PW 16 nowhere says that the bed sheet was also seized when blood stains were lifted. Whereas [ENTITY] (PW 23) and Inspector [ENTITY] (PW 24) stated that Dr. [ENTITY] (PW 16) beside lifting blood stains also seized thread and bed sheet. The I.O. (PW 24) as well as the [ENTITY] (PW 23) in their zeal to secure conviction of the appellants forgot that they were trying to introduce a fact which has not been supported by the expert Dr. [ENTITY] (PW 16). If the thread and bed sheet had been seized on 27th April,1999 it would have been witnessed by Dr. [ENTITY] (PW 16). But the Seizure Memo is only witnessed by PW 3. No explanation why PW 16 did not witness the same. PW 16 unfortunately for prosecution nowhere supports the version of PW 23 and PW 24 it is entirety.
10. That the seal after sealing was also not handed over to an independent witness. It remained with [ENTITY] (PW 23). This could have given ample opportunity to police to manipulate the evidence. The purpose of handing over seal to an independent witness is a safety valve so that police official may not manipulate the evidence subsequently. Having not done so cast shadow on the case of the prosecution.
11. Dr. [ENTITY] (PW 16) admits that the Maruti Car from the rear seat of which blood stains were lifted was standing unlocked at the police station. Its door could be opened without key. It was lying unprotected. Since the car was lying in the police station unlocked and unprotected, the lifting of blood stains from such a car cannot connect the accused persons with the crime. Any one could have played the mischief. As per [ENTITY] (PW 23) he did not drive the car nor brought it to the police station. The car however was brought from the house of "[ENTITY]" to the police station. I.O. of the case Inspector [ENTITY] (PW 24) on the other hand says that Maruti Car was driven by [ENTITY] (PW 23) and it was he who brought it to the police station. This shows prosecution is not sure of its own stand. Neither PWs 3, 4 nor PW 23 brought the Maruti Car to police station then who brought it remained unexplained. Car was not locked. It was lying in police station unattended, anything could have been happened there. Hence, lifting of blood stains from the rear seat cover of the car has no significance nor link accused persons with the crime.
12. Recovery of Moped from an open space meant for parking in the market place is no recovery in the eye of law and we find force in this proposition. Similarly no reliance can be placed on the testimony of [ENTITY] (PW 5). From the recovery of a key ring (Ex. PW 2) which had no specific mark of identification, police could not have traced [ENTITY] (PW 11) or in turn the accused persons. Moreover, the prosecution failed to explain that after the key ring with the name of "J&K Traders" inscribed on it was found on 23.4.1999 why efforts were not made to find out from J&K Traders on 23rd April, itself as to whom this keyring belonged. [ENTITY] (PW 23) stated that since the name of the shop was inscribed on the key ring, therefore, on 26.4.1999 the police contacted the shop owner of J & K Traders. He in turn told that such a key ring was given to [ENTITY]'s employee who was since missing. This is how the police came in contact with [ENTITY] (PW 11) and through [ENTITY] the accused persons. The story as put up by the prosecution does not inspire confidence for the simple reason that by looking at the key ring which had no specific identification mark except the "J & K Traders" inscribed on it the owner of the shop could not say it was given to the employee of [ENTITY]. J & K Traders must have got manufactured number of identical key rings. Therefore, from looking at the key ring he could not have said that the same was given to the deceased. Moreover, if key ring was an important piece of evidence then why on 23rd April itself, efforts were not made to contact owner of J & K Traders to find out whom the key ring in question was given. The key ring by itself is not a link in the chain. To show that police reached [ENTITY] (PW 11) through the key ring rather creates doubt in the case as set up. Prosecution has tried to make usbelieve that through this key ring they could trace [ENTITY] and through [ENTITY] the accused persons. It is nothing but a make belief story.
13. That as regard disclosure, [ENTITY] appearing as PW 11 denied having witnessed the recoveries or recording of statements of the accused persons in his presence. According to PW 11 he was made to sign some blank paper. He was declared hostile witness. From his cross-examination, Public Prosecutor could not elicit any contradiction worth the name. [ENTITY] (PW 23) however did testify that disclosure statement by [ENTITY] and [ENTITY] were recorded in his presence and he witnessed the same. According to [ENTITY] (PW 23) on the disclosure of [ENTITY] knife Ex. P3, helmet and Moped were recovered. He further testified that on the disclosure of [ENTITY] iron rod was recovered from the house of [ENTITY] whereas Inspector [ENTITY], PW 24 stated that iron rod (Ex. P4) was recovered from the house BA 57-A of [ENTITY] as his disclosure. He further testified that on the pointing out of [ENTITY] helmet was recovered from a dry drain. On the point out of disclosure and recovery of iron rod Ex. P4 and helmet there is material contradiction in the testimony of PWs 23 and 24 and as pointed out above. Both the prosecution witnesses are not sure as to at whose disclosure what what recovered. Hence the recovery and disclosure both becomes doubtful.
14. The question which arises for consideration is: whether the knife and the iron rod could be called the weapon of offence having caused injury Nos. 1, 2 and 3. According to Dr. [ENTITY] (PW 15) injury No. 1 could be caused by blunt weapon like iron rod but the iron rod Ex. P4 was neither put to him for his expert opinion to ascertain whether Ex. P4 could be the weapon of the offence which could cause injury No. 3. Injury Nos. 2 and 3 said to have been caused by a double edged weapon. It was the duty of the prosecution to put the knife Ex. P3 before the doctor to ascertain whether it could be the weapon of offence having caused injury Nos. 2 and 3. But prosecution did nothing of this sort rather the doctor appearing as PW 15 categorically stated that alleged weapon of offence was not produced before him at the time of post-mortem examination.
15. Mr. [ENTITY] contended that the alleged recovery of knife Ex. P3 cannot be linked with the offence because admittedly as per the prosecution's own version and as fortified by the sketch of the knife Ex. PW 11 /G, the knife Ex. P3 is a single edged weapon. Whereas according to Dr. [ENTITY] (PW 15) injury Nos. 2 and 3 were caused by a double edged weapon. Hence Ex. P3 being not a weapon of offence, this crime could not have been committed with the same. It proves beyond a shadow of doubt that material link in the chain of circumstance is missing. To support his contention he placed reliance on the decision of Supreme Court in the case of [ENTITY] v. The State, AIR 1953 Crl. Law Journal 1761 (SC). The facts of that case are that one [ENTITY] was murdered. It was alleged that injuries were caused by the appellant [ENTITY] and that these injuries were caused by a gun shot which was sufficient to cause his death. On disclosure of accused [ENTITY] 12-Bore licensed gun was recovered. The doctor when examined the gun opined that though cartridges were fired from that gun but he could not say when those were fired last nor could say whether those cartridges were actually fired from the gun in question or from similar gun or guns. Since expert witness did not make any experiment by firing any cartridge from the gun in question nor he compared the marking on the empty cartridges, in that view of the matter the Supreme Court came to the conclusion that the prosecution failed to prove fully the case. The following observation in the said case squarely applies to the facts of this case:
"In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case."
16. Similar view was expressed by the Apex Court in the rase of [PRECEDENT]. It has been observed that it is important to connect the injuries with the weapon before the guilt of the accused can be brought home. While disposing of the appeal the Apex Court observed as under:
"We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice." (Underlining is ours) Since prosecution in that case failed to link the weapon of offence with the injury caused to the victim, hence Apex Court accepted the appeal and set aside the conviction and the sentence.
17. In the case in hand the alleged weapon of offence Ex. P3 and the iron rod though available with the prosecution yet at the time of post-mortem of the deceased the said weapons were not produced before the doctor for his opinion. It was the duty of the prosecution to have produced the same in order to ascertain whether the injury No. 3 could be caused by Ex. P3. The prosecution, to our mind, miserably failed to discharge its burden. This has caused serious prejudice in the cause of justice, As per PW 15 expert's opinion injury No. 3 was sufficient to cause the death and the same was inflicted by a double edged weapon. That means the allegedly recovered knife Ex. P3 could not have caused injury No. 3 hence cann't be linked with the offence. In the absence of there being any evidence linking Ex. P3 with the offence, the mere recovery of a knife from the house of [ENTITY] cann't be a incriminating material against appellant No. 1. Similarly, the recovery of iron rod having not been linked with offence it is not possible to arrive at a conclusion that the injury No. 1 was caused with the said iron rod alleged to have been recovered at the instance of appellant No. 2. It is important to connect the recovered weapons with the offence in order to bring home the guilt of the accused. In the absence of which no inference can be drawn that the alleged weapons caused the death. Hence the purported recovery of weapons on the disclosure of appellants has no bearing on the case relevance. Mere recovery of a weapon by itself is no proof that it is the weapon of offence nor furnishes incriminating material against the appellants. As a matter of fact the appeal is liable to be allowed on this ground itself as the alleged weapon of offence i.e. knife has not been connected with the incident. To our mind, important link in the chain stood broken. It cannot be said that the prosecution has proved the entire link in the chain of circumstances leading to no hypothesis other than that of the guilt of the appellants.
18. In the result, we accept the appeal and set aside the conviction and sentence under [SECTION], [ACT]. We order that the appellants be released forthwith, if not required in any other case. Order be conveyed to the appellants through the Superintendent, Central Jail, Tihar.