JUDGMENT Mukundakam Sharma, J.
1. By this judgment and order we propose to dispose of the aforesaid four appeals which arise out of judgment and orders of conviction and sentence dated November 3, 2001 and November 8, 2001 respectively, in Sessions Case No. 188 of 1999.
2. The First Information Report was registered as FIR No. 94 of 1999 on the basis of Rukka, i.e., DD No. 20A dated June 5, 1999. It is recorded in the said First Information Report that when the informant, the Inspector, along with Constable Naresh Pal, was present for patrolling in the area, an information was received that a dead body had been recovered. The said informant Inspector immediately on receipt of of the information proceeded to the place of occurrence of the crime known as Suri Farm House in Village Bamnoli where Sub Inspector Brij Mohan Bahuguna together with Constable Jitender were already present at the spot. He had also stated that some blood was found scattered in the field of Suri Farm House and some struggle marks and skid marks were also found there. The trail of some blood marks was leading through the field to the well built inside the farm house, and that on peeping inside the well a human dead body was found lying. It is also stated that the said dead body was extricated from the well with the help of villagers. The said dead body was identified to be of one Hari Om on the basis of tattooing on the right arm and also on the basis of the statements made by the village-men who stated that the said body is of Hari Om son of Sukhbir Singh, a resident of village Bamnoli. The Inspector, who inspected the dead body, found a total number of 28 wounds of sharp injury on the body of the deceased. The facts disclosed commission of an offence under section 301/201 Indian Penal Code. In the Rukka it was prayed that a case be registered. On the basis of the said information, FIR No. 94/1999 was registered and investigation was continued. During the course of investigation police examined witnesses, collected various documents and thereafter submitted a charge sheet against three persons, namely, Sunil @ Leelu, Narain Singh @ Lala and Smt. Mukesh, the present appellants.
3. The prosecution case, as disclosed from the aforesaid charge sheet, is that Narain Singh @ Lala, who is also a resident of Village Bamnoli, New Delhi, went to the house of deceased at about 9.00 A.M., who was his friend, and took the deceased with him from his house. It was also alleged that Hari Om, the deceased, was also having friendship with another boy, namely, Ravinder, of the village who works as an electrician. Said Ravinder had done electric fittings at the house of Smt. Mukesh, who is also in accused in the present case, and during his visits to the house of Smt. Mukesh, he developed illicit relations with Smt. Mukesh. It is also the further case of the prosecution that Hari Om was a close friend of Ravinder and, therefore, Ravinder disclosed about his illicit relations with Smt. Mukesh to Hari Om. Subsequently, Hari Om took certain photographs of Ravinder and Smt. Mukesh and on the basis of these photographs he also developed illicit relations with Smt. Mukesh. Accused Narain @ Lala used to live in the neighborhood of Smt. Mukesh and used to visit her house for milking her cows and in one of such occasions he saw Smt. Mukesh and Ravinder in compromising position and taking advantage of the same he also developed illicit relations with Smt. Mukesh. It is also its case that according to Ravinder, he developed some kind of sexual disease and stopped going to the house of Smt. Mukesh, but Smt. Mukesh insisted on his coming and also sent letters expressing her love for him but he restrained himself from visiting her house but Hari Om, the deceased, did not stop and continuously visited Smt. Mukesh to satisfy his desires whereupon Smt. Mukesh became fed up with Hari Om's excessive demands on her. It is alleged that on June 4, 1999 in the evening Hari Om again went to the house of Smt. Mukesh with one of his friends when Sunil, cousin brother of Smt. Mukesh, was at home of Smt. Mukesh and misbehaved and insisted upon meeting Smt. Mukesh whereupon Smt. Mukesh told him to get out of her house.
4. It is alleged by the prosecution that at that stage a criminal conspiracy was arrived at between Smt. Mukesh, Narain @ Lala and Sunil @ Leelu for eliminating Hari Om and in terms thereof Narain went to the house of Hari Om on the next morning and told him that Smt. Mukesh wanted to see him at Suri Farm House and so Hari Om was taken by Narain along with him to Suri Farm House where Sunil was also present with a knife, and the moment Hari Om reached inside Suri Farm, which was a deserted farm, Sunil pouched upon Hari Om with the knife and Narain @ Lala kept holding Hari Om. It is alleged that Hari Om was inflicted knife blows repeatedly till he died and thereafter his body was dragged and thrown into the well. It is also alleged that since the cloths of Narain @ Lala and Sunil got blood stained, both of them went to the house of Smt. Mukesh and the said clothes were burnt by Smt. Mukesh, and after changing the clothes at Smt. Mukesh's house both of them took Rs.100/- each from Smt. Mukesh and left the village. It is alleged that Sunil went back to his own village in Haryana while Narain went to his Nani's place in a village near Sona in Haryana wherefrom they were arrested. It is also the case of the prosecution that both Sunil and Narain were arrested on June 7, 1999 when police recorded their disclosure statements and thereafter Sunil led the police party to the place in the farm house where he had concealed the knife allegedly used by him in the commission of offence and got recovered the knife. Blood stained earth from the Suri Farm and from outside the well was seized. The knife recovered at the instance of Sunil was also seized. The doctor also performed post-mortem on the deceased and gave an opinion that there were 36 incised wounds caused by sharp edged weapon on the body of the deceased.
5. On the basis of the aforesaid charge sheet filed, charges were framed against the three accused/appellants herein under section 120B/364/302/201 IPC. The said charges were read out to the appellants who pleaded not guilty to the charges and claimed or a trial. During the trial as many as 19 witnesses were examined on behalf of the prosecution, whereas the defense examined 2 witnesses, namely, DW-1 Jai Singh and DW-2 Raj Singh. The accused persons were also examined under section 313 Cr.P.C. hereafter, the learned Additional Sessions Judge heard the arguments of the counsel appearing for the parties and passed the impugned judgment and order which are assailed in all the four appeals. By the aforesaid judgment and order, the learned Additional Sessions Judge convicted the two accused/appellants Sunil and Narain under section 302/120B IPC and sentenced them to undergo life imprisonment under section 302 IPC and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo RI for six moths. All the three accused, Sunil, Narain and Smt. Mukesh, were convicted under section 201 IPC and sentenced to imprisonment for three years and a fine of Rs.3,000/- and in default to further undergo RI for three months. All the three accused persons were were also convicted under section 120B IPC for hatching up criminal conspiracy to eliminate Hari Om and they were sentenced to undergo RI for 10 years and fine of Rs.5,000/- each and in default to further undergo RI for six months under section 120B IPC.
6. Being aggrieved by the aforesaid judgment and order of conviction and sentence, four appeals have been filed out of which three appeals have been filed by the accused against their orders of conviction and sentence, whereas the fourth appeal is filed by the State against the order of acquittal of accused Smt. Mukesh from the charge under section 302 IPC.
7. We have heard the learned counsel appearing for the parties on all the four appeals who painstakingly took us through the evidence on record. They also cited various judgments in support of their contentions. On appreciation of the same we proceed to dispose of all the appeals in terms of the orders recorded herein.
8. The prosecution case is entirely based on circumstantial evidence as there was no eye witness to the occurrence. It is by now well settled that conviction in a criminal trial could be based solely on circumstantial evidence, but it is also well settled that before doing so the court has the responsibility to test the circumstantial evidence by the touchstone of law relating to circumstantial evidence which is made explicitly clear by the Supreme Court in its various decisions. It is laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the case of State of Madhya Pradesh v. Sanjay Rai, 2004 Crl. L.J. 2006, the Supreme Court noticed the various judgments which deal with evidentiary value or the circumstantial evidence and which is reiterated again and again by the Supreme Court in the following decisions:-
1. Hukam Singh v. State of Rajasthan, .
2. Eradu and Ors. v. State of Hyderabad, .
3. Earabhadrappa v. State of Karnataka, .
4. State of U.P. v. Sukhbasi and Ors., .
5. Balwinder Singh v. State of Punjab, .
6. Ashok Kumar Chatterjee v.State of M.P, .
9. In the case of Bhagat Ram v. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accuse and bring the offences home beyond any reasonable doubt. Reference also could be made to the decision of the Supreme Court in Padaka Veera Reddy v. State of A.P. and Ors., , which broadly lays down the tests which must be satisfied when a case rests solely upon circumstantial evidence. The said tests are as follows:-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilty of the accused and such evidence should not only be consistent with the guilty of the accused but should be inconsistent with his innocence.
10. The Supreme Court has again and again reiterated that 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. It was held that, in other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion 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. The same is reiterated in the decisions of the Supreme Court in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, ; C. Chenga Reddy and Ors. v. State of A.P., ; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1994 SC 1622. In the aforesaid last decision, the conditions precedent for basing a conviction on circumstantial evidence were set out as follows:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(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 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. We are, therefore, required to examine the facts of the present case in the backdrop and in the touchstone of aforesaid principles of law which have been laid down by the Supreme Court.
11. There are three accused who are also the appellants herein. Two of them have been convicted under section 302 IPC, whereas the third, namely Smt. Mukesh, is convicted under sections 120B and 201 IPC. We now proceed to analyze, consider and appreciate all the incriminating circumstances which were sought to be proved by the prosecution against the three accused persons. PW-1 and 2, namely, Sukhbir Singh and Prem Chand, were examined by the prosecution as witnesses who had deposed that they had last een the accused with the deceased. PW-1 is the father of the deceased who had stated that on June 5, 1999 his son Hari Om was taken by the accused Lala at about 9.00 A.M. He has also stated that Lala had friendly relations with his son and that Rainder (PW-5) is also a friend of his son. He also identified the dead body of his son in a well in Suri Farm at about 10.00 P.M. on June 5, 1999 when police called him after recovering the dead body. He also stated that the police got the place of occurrence photographed on the next date and also seized blood stained earth from near the well. In his cross-examination he had categorically stated that on June 6, 1999 he reached near the well at about 8 A.M. and that many other persons of the village had gone with him although he could not tell the names of those persons. He also stated that blood was lifted from the ground without erasing the same and that he signed all the documents on June 6, 1999 at the place of recovery. He had also stated that his son was wearing checkdar bush-shirt and light blue colour pyjama when he had gone from the house. He further stated in his cross-examination that the articles seized from the spot were not sealed in his presence. He admitted that the police had also apprehended PW-5 Ravinder and kept him with them for fifteen days.
12. PW-2 Prem Chand was examined also as a witness who had last seen the deceased at about 9.30 A.M on June 5, 1999. He stated that he had seen that accused Lala was taking Hari Om towards Suri Farm upon which he asked Hari Om as to where he was going and he told him that he was going towards Farm in connection with some work of Lala, and on the same day about 7/8 P.M. he came to know that Hari Om had been murdered. In his cross-examination he had stated that the boundary wall of Suri Farm House was ling in broken condition and that residential houses and mandir are also situated inside Suri Farm House. He stated that he had seen accused Lala with Hari Om near the gate of Suri Farm House. He denied the suggestion that he had not seen accused Lal going with Hari Om. He also stated that after leaving the accused Lala and the deceased Hari Om near the gate of Suri Farm House he came back to his house and that there was no other person at that time at the gate except for 4 or 5 donkeys of Lala. He also denied the suggestion that no animal can enter the Suri Farm House for grazing.
13. PW-3 Udai Singh was the cousin brother of the deceased as the deceased was the son of his uncle Sukhbir Singh. He was examined to narrate an incident which had taken place on June 4, 1999. According to him, on June 4, 1999 Hari Om came to his house at 9.00 P.M. and told him that he had a quarrel with somebody and that he should accompany him. It is stated that he accordingly accompanied the deceased when he took him to the house of Smt. Mukesh, the accused person. He stated that he, however, stayed outside the house of Smt. Mukesh while Hari Om entered and went inside the house. He also stated that accused Narain was also present in the house of Smt. Mukesh, and that while he was standing at the gate he heard heated altercation between Mukesh and Hari Om when Mukesh told Hari Om that he should leave the place otherwise he would get him killed then. He stated that he thereafter left the place and went to his house, but Hari Om remained in the house and that he did not know when he left her house. He stated in his cross-examination that he had told the police about the altercation between Mukesh and Hari Om which fact is, however, belied by his statement made before the police under section 161 Cr.P.C. and exhibited in the case as Ext PW3/DA where the said facts stated by the witness about the altercation between Mukesh and Hari Om, and Hari Om coming to him and stating him that he had quarrel with somebody and that he should accompany him, were not stated nor recorded in the said statement.
14. PW-5 is Ravinder Singh who also knew Smt. Mukesh very well. He had done work of electrical fittings in her house. He stated that since the deceased was his close friend he told him about his relations with Smt. Mukesh. He also stated that one day he and Hari Om had come back from a party and were having a camera and that on that day the said witness told Hari Om that since they have a camera they should get Mukesh photographed. He also stated that thereafter they went inside and while he and Mukesh were in bed, Hari Om took their photographs from front side in their presence. The said photographs have been proved by him as Ext. PW5/A1, A2 and A3. He also stated that once Narain @ Lala told him that Hari Om had become so bold that he dropped at the house of Mukesh at any time he liked and that he was asked to advise Hari Om to behave himself and that if the family members of Mukesh learnt about that activity it would not be good for him. He admitted in his cross-examination that mother-in-law of Mukesh also live in the adjoining room in the same house. He also admitted that he remained in police custody for about 3 days for interrogation in connection with the aforesaid case, and that Mukesh was also in policy custody during the aforesaid period. He also stated that there is one hall and there are two separate rooms, latrine, bath room and another room he is on the backside.
15. PW-6 is Dharampal Singh Pawar, who was examined to prove the recovery of the knife by accused Sunil. He proved the said knife and also the seizure memo Ext. PW6/A. He stated that accused Mukesh led the police party to her house and from her house ashes of burnt clothes and some partly burnt pieces of clothes were found concealed under cow dunk cakes and that police seized the said ashes and semi-burnt clothes. He was cross-examined by the counsel for the accused persons at length. He had stated that Sunil led the police party for recovery of the knife in the evening of 7th June 1999 and the place from where the knife was recovered was a kuchha place and that it was recovered from behind the room near the boundary wall. He admitted that the police did not ask any of the villagers who had gathered there to come as a witness to the recovery of the knife.
16. PW-14 Bimla Devi was a constable who had taken `jama talasi' of accused Smt. Mukesh. She stated that accused Smt. Mukesh was interrogated whereupon she led the police party to her house where the fire is burnt and from there he got recovered burnt clothes and ashes. She is a witness to the aforesaid seizure of the burnt clothes and ashes. She had admitted in her cross-examination that the burnt cloth pieces were very small which could be of only two or three fingers. The court had recorded that the burnt pieces were so badly burnt that they were tightly bound into cloth pieces and there were hardly 7-8 small pieces and the size varied from few millimeters to 3-4 centimeters.
17. The Investigating Officer is PW-19 being Ashok Kumar who was working as Additional S.H.O. On receiving information at 7.00 P.M. through wireless he went to the place of occurrence and there he found struggle marks in the field and blood. He got the dead body extricated by using hooks and ropes and found multiple sharp weapon injury wounds on the body. He had stated about the relationship between Ravinder and Mukesh and also of the information furnished to him by Ravinder that one day when he and Mukesh were in compromising position one Lala saw them in that position and thereafter Narain also became a party to the sexual relations with Mukesh and he also started to have illicit relations with her. He stated that he arrested Mukesh, Sunil Kumar and Narain and recorded their disclosure statements and that Sunil led the police party to the place where the weapon, namely, Chhuri, had been concealed by him and got recovered Chhuri from near the place of occurrence, namely, Suri Farm House. He stated that he remained on the spot from about 7.45 P.M. to approximately 4 A.M. in the morning. He also stated that PW Ranbir had also associated in the investigation of the case on 5th, 6th and 7th June 1999. He further stated that it took 1-1/2 hour from the police station in reaching Sohna in jeep/vehicle and for reaching Jhajjar it took about 1 hour and 10-15 minutes by jeep/van from police station, and that Narain and Sunil were identified by the informer from the village. He stated that the knife was under the earth in flat condition and when the knife was taken out, it was having earth stains over it and that he used the seal of `AKK' for sealing the knife which he gave to Dharampal after use. However, the witness Dharampal has denied the said fact. It is also stated by him in his deposition that in the house of Mukesh, cow dunk cakes are kept in the room and that Mukesh got discovered the ashes of the burnt clothes from under the cow dunks. He also stated that weight of the same would be more than 5 to 10 grams. He also stated that when they were at the house of Mukesh, her mother-in-law and-in-law were there.
18. Counsel appearing for the parties referred extensively to the aforesaid evidence in support of their submissions. So far accused Smt. Mukesh is concerned, there is no evidence at all that she was present at the place of occurrence. Therefore, the learned Additional Sessions Judge rightly did not find any evidence against her to convict her under the provisions of section 301 I.P.C. She was convicted under section 120B for hatching a conspiracy with the other two accused persons, namely, Lala and Sunil, to murder and to do away with Hari Om and also for concealing material evidence, like the wearing apparels of Sunil and Lala, which were blood stained, by putting them into fire and burning them and keeping the ashes under the cakes of cow dunks. However, on appreciation of the entire evidence on record we are not in a position to accept that the prosecution has been able to establish that there was an agreement between all the three accused persons to kill the deceased Hari Om. The incriminating circumstances which are sought to be proved are alleged altercation between Smt. Mukesh and Hari Om on the evening of 4th June, 1999. PW-3 had stated in his deposition, a major part of which is referred to above, that he was standing outside the house of Smt. Mukesh when he was asked by Hari Om to accompany him to the house of Smt. Mukesh. The reason why he was asked to wait outside the house is not forthcoming. Then again if he was standing outside the house of Mukesh he would not have any knowledge as to who was inside the particular house. Therefore, there is no evidence on record disclosing his source of information about the persons present inside the house. According to his own statement, he was standing at the gate outside the house when he heard the altercation between Mukesh and Hari Om. During the cross-examination he stated that Mukesh told Hari Om after the altercation that he should leave the place or otherwise he would be got killed by her. He admitted in cross examination that Hari Om continued to remain in the house and even despite the said fact, Hari Om was not killed in her house. The witness stated that he left the place and went to his own house. The said conduct of the witness in not informing Hari Om befor leaving the place, whom he had accompanied, is also suspicious. Then again, the aforesaid part of the statement that there was altercation between Smt. Mukesh and Hari Om was never stated by him before the police when he was examined under section 161 Cr.P.C. It is for the first time introduced at the time of recording his deposition. That is the only piece of incriminating evidence that is led by the prosecution to prove a conspiracy between the three accused persons. It is also interesting note that the said witness did not state that even Sunil was inside the house although the prosecution tried to put Sunil in the same house at that relevant time, which facts are referred to by the learned Additional Sessions Judge in his judgment. I our considered opinion, therefore, the story of conspiracy which was sought to be proved by the prosecution fails as the evidence led in support of the same is found to be unreliable and not trustworthy. For the aforesaid reasons we are of the considered opinion that the conviction by learned Additional Sessions Judge under section 120B IPC cannot be sustained. The other incriminating evidence which is led against the accused Smt. Mukesh and made the basis of her conviction under section 201 IPC s the recovery of ashes of burnt clothes. There is vital contradiction with regard to the aforesaid recovery as well inasmuch as the investigating officer stated that he had recovered the same, namely, ashes of burnt clothes, from under the cow dunk ckes which were kept in a room, whereas the seizure witness, namely, PW-14, had stated that accused Mukesh led the police party to her house and from the place where fire is burnt she got recovered burnt clothes and ashes. The said recovery was on 7th June, 1999 when the date of occurrence was 5th June, 1999. The prosecution case itself is that on the same night both the accused, namely, Lala and Sunil, came to the house of Mukesh and their wearing apparels which had blood stains were burnt by Mukesh on the same night. If the said clothes were in the Hera (fire place) for two days there would have been nothing left of the same as Mukesh must have been cooking in the same Hera for all those two days. The said burnt cloth pieces were also very small in size and, therefore, the same cannot be held to be the same wearing apparels as were used by the two accused persons which are stated to be blood stained. In that view of the matter, in our considered opinion, the entire evidence led by the prosecution do not inspire our confidence and the same is found to be unreliable for basing a conviction. Therefore, Smt. Mukesh stands acquitted of all the charges on benefit of doubt.
19. We may now take up the case of the next accused, namely, Sunil, who is also one of the appellants. One incriminating evidence that the prosecution has brought in the trial against him was that Sunil himself led the police party to Suri Farm House and the knife which is stated to be the weapon used in the crime was recovered from Suri Farm House at his instance. The aforesaid recovery was made in the presence of Dharampal Singh whose evidence given in the trial is referred to in the preceding paragraphs. Except for the aforesaid piece of evidence against said Sunil, none of the other witnesses has stated anything adverse to him. In other words there is no other incriminating evidence against the said accused Sunil. We have carefully scrutinized the entire evidence on record and did not find a single witness even whispering that the accused Sunil is involved in the crime. Therefore, the only incriminating evidence led against him by the prosecution to rope him in is the allegation of recovery of knife at his instance which is proved by PW-6 Dharampal and by the investigating officer. The evidence on record does not lead to the conclusion that the said knife belonged to accused Sunil. Whether the said knife was used in the commission of offence or not is, however, a matter to be examined and scrutinised. The C.F.S.L. report is proved as Ext. PW19/H1, H2 and H3. The aforesaid knife was recovered from under the earth and, therefore, the said knife contained earth as well. The for nsic report to which our attention was drawn reveals that the aforesaid blood stained knife showed no reaction. Therefore, it could not be conclusively proved that there was any blood on that knife and even if there be any blood, the same was the blood of the deceased. Besides, the recovery memo of knife which is proved as Ext.PW6/A indicates that the knife allegedly recovered at the instance of the accused Sunil had blood stains and marks, whereas the forensic laboratory has found no reaction on the said knife. The said fact cast a shadow of doubt on the alleged recovery. In this connection we may also appropriately refer to a judgment of the Supreme Court in K.V. Chacko @ Kunju v. State of Kerala, 2000 IX AD (S.C.) 285. In paragraph 10 of the said judgment it was stated as follows:-
Then, the prosecution through the evidence of PW-14, V.S. Parameswaran Nair, the then Asst. Director, Biology Division Forensic Science Laboratory, Thiruvannthapuram, tried to establish a connection between the crime and MO-13. The said witness stated that when he examined the axe though it was rusted, he was able to trace some blood stains on it. He has denied the suggestion of the defense that the detection or existence of blood stains on the axe which was immersed in water for 4 years is not possible, by giving certain scientific explanation for the same. His evidence does not establish beyond all reasonable doubt that this MO-12 was used in assaulting Johnny and his family because he has not been able to trace any human blood on MO-12. even though he found some blood, he was unable to analyze the said blood to find out whether the same belonged to human being or not. In the absence of any such finding, in our opinion, from the evidence of PW-14, it is not possible to come to the conclusion that the axe in question was really used in the assault on Johhny and his family members. We may note at this stage that there is no direct evidence to connect MO-12 with the death of Johnny and his family members
20. Reference may also be made to the decision of the Supreme Court in Prabhoo v. State of Uttar Pradesh, , the Supreme Court observed as under:-
(9). The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery. According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammed. Lal Bahadur Singh was examined as prosecution witness No.4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not however, say that the appellant made any statements relating to the recovery. Wali Mohammed was not examined at all. One other witness Debi Baksh Singh was examined as prosecution witness No.3. This witness said that that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Debhi Baksh (PW 8) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by Ss. 25 and 26 of the Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of S. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him a statement which led to any discovery within the meaning of S. 27. Section 27 provides 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. In Pulukuri Kotayya v. Emperor, 74 Ind App 65; {AIR 1947 PC 670, the Privy Council considered the true interpretation of S. 7 and said:
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 roved 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 he house of the informant. (p.77 of Ind App): (at p. 70 of IR) We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.
(10) Therefore, the question before us is this. Is the production of the blood axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer? It is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub-Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortcut of ascribing certain statements to the appellant which were clearly inadmissible. In our considered opinion the ratio of the aforesaid decisions of the Supreme Court squarely applies to the facts of the present case.
21. So far the evidence of PW-6 is concerned, he is a witness to the fact of recovery at the instance of the accused Sunil. He has admitted in his evidence that the said farm house is a deserted place and the boundary walls are broken. It is also clear in evidence that it was an open space from where the aforesaid knife was dug out. There are also vital contradictions in the evidence of the said witness with that of the investigating officer. The aforesaid position and situation would, therefore, clearly prove and establish that none of the witnesses examined by the prosecution had stated about the involvement of Sunil in the crime except for the said incriminating evidence against him which was stated by PW-6 and the investigating officer relating to recovery of the alleged weapon of the crime at his instance. None of the witnesses examined in the case had stated that the deceased was last seen in the company of Sunil. There is no evidence led in the trial to prove and establish that he had in any manner conspired with the other two accused in killing the deceased, nor any enmity is proved between him and the deceased. No evidence is on record to show his connection with any of the co-accused. There is also substantial dispute and uncertainty with regard to the time and date of recovery of the knife. Therefore, we are of the considered opinion that the prosecution has failed to establish any link between Sunil and his co-accused or the deceased. None of the pre-conditions for being a conviction on circumstantial evidence is present for finding Sunil guilty of the offence alleged. Accordingly, we also find no other option but to give benefit of doubt to the appellant Sunil in the present case.
22. We are now left with the case of Narain @ Lala. The learned Additional Sessions Judge in returning a finding of guilt as against the said accused has relied upon the evidence of PW-1 and PW-2 which pertains to the fact of their being last seen together with the deceased. It is true that PW-1 and PW-2 have stated that the said accused was in the company of the deceased in the morning around 9 to 10 A.M. of 5th June 1999. However, the dead body was recovered at night, i.e., around 9.00 P.M. The aforesaid appellant was seen at Suri Farm House by PW-2 along with his donkeys. The role ascribed by one of the witnesses in statement under section 161 Cr.P.C. was that Sunil stabbed the deceased, whereas the appellant Narain @ Lala was holding the deceased. However, there is no reliable, corroborating and admissible evidence on record in proof of the said fact. The learned Additional Sessions Judge in coming to the aforesaid conclusion has relied upon inadmissible evidence, namely, the statement given by some of the witnesses under section 161 of the Cr.P.C. There is a gap of about 12 hours from the time the accused was last seen with the deceased till the recovery of the dead body. There is no evidence on record implicating the accused which is admissible under the provisions of section 27 of the Evidence Act. Since there is a gap of about 12 hours in between the time of last seen and the recovery of the dead body, and since the incident had taken place in a deserted open place, and since there is no other evidence, it may not be plausible and appropriate to uphold the conviction of an accused only on the basis of evidence of PW-1 and PW-2 that the deceased was last seen with the said accused approximately 12 hours prior to the time of recovery of dead body. There is absence of chain of evidence for establishing conclusively the guilt of the accused Lala. There is doubt and improbability of the accused alone committing the crime and when the co-accused are acquitted on benefit of doubt in our considered opinion, the present appellant is also required to be acquitted on benefit of doubt.
23. We, accordingly, allow the three appeals filed by the accused-appellants and acquit them of all charges giving them benefit of doubt. They are acquitted of the charges under sections 302/120B/364/201 IPC. They are directed to be released forthwith unless they are wanted in any other case. Consequently, the appeal filed by the State stands dismissed.