Dhoom Singh S/o Bhilo Pargi vs State of Rajasthan

In this criminal appeal filed under Section 374 Cr.P.C., the

appellants are assailing the judgment dated 21st Oct. 1995 passed

by learned Addl. Sessions Judge, Bhilwara in Session Case

No.17/1992, whereby the learned trial court while acquitting the

appellants from the charges under Sections 394 / 34 and 397 / 34

IPC convicted the accused appellants for the offence u/s 302/34 of

IPC and passed sentence for life imprisonment along with fine of

Rs.500/- with default stipulation to further undergo three months''

rigorous imprisonment.

As per facts of the case, in the intervening night of

03/04.02.1992, the S.H.O., of Police Station- Bijoliya (Sh.

Chandramohan) was on patrolling duty and travelling in Jeep

No.RJE-161 along with constable, Radhakishan, Govind Ram and

driver, Bhagwatilal. When the police party reached near Mandola

Dam, at about 02.00 AM, they saw an injured man in unconscious

condition lying on the left side of the road and his motorcycle

bearing registration number RSE-2921 was lying on the other side

of the road. The police personnel took the injured person at

Bijoliya Hospital, and got him admitted for treatment, where he

died at 04.00 AM in the early morning.

Upon enquiry, the police found that name of deceased was

Shambhu Lal Nai, and he was resident of Village Renvas, P.S.

Bigod and, an Inquest Report No.1/1992 (Ex.P/1) was registered

by the police under Section 174 Cr.P.C. and investigation

commenced. The postmortem of the dead body of the deceased

Shambhu Lal Nai was conducted and usual investigation was made

at the place of occurrence and during investigation, the

Investigating Officer framed opinion that it is a case of murder of

the deceased, Shambhu Lal Nai and somebody killed him in the

way when he was coming from Village Bijoliya. In the

investigation number of injuries were found upon the body of the

deceased and thereafter, the Investigating Officer (S.H.O., Police

Station Bijoliya) himself registered an FIR No.69/1992 under

Section 302 of IPC on 04.02.1992 at Police Station Bijoliya,

District Bhilwara. During investigation, on the basis of evidence of

last seen vide (Ex.P/35, P/36 and P/37) the appellants were

arrested. After arrest, upon their information, "Lathi" (acacia

stick), cash and repairing bill of the motorcycle of deceased upon

which he was travelling, were recovered. During investigation,

food prints were also taken from the place of incident purportedly

belonging to the accused appellants and those foot moulds were

sent to FSL for chemical examination and as per report of FSL,

foot moulds were found matching with the shoes of the accused

appellants. The S.H.O., Police Station Bijoliya, submit a charge

sheet against the accused appellants in the court of Munsif &

Judicial Magistrate, Bijoliya, one the basis of circumstantial

evidence from where the case was committed to the court of

Sessions Judge, Bhilwara, but subsequently transferred to the

court of Addl. Sessions Judge, Bhilwara for trial.

In the trial, first of all after providing opportunity of hearing

charges were framed against all the accused on the basis of

circumstantial evidence under Sections 302 / 34, 394 / 34 and

397 / 34 of IPC and the trial was commenced.

During trial, statements of 20 prosecution witnesses were

recorded to prove the case against the appellants on the basis

circumstantial evidence of last seen, recovery of cash & stick and

repairing bill of motorcycle of the deceased, so also, on the basis

of FSL report of foot mould taken from the place of occurrence.

The learned trial court while relying upon aforesaid

circumstantial evidence held the accused appellants guilty only for

commission of offence u/s 302/34 of IPC vide judgment dated 21st

Oct. 1995 and acquitted them from the charges for offence under

Sections 394 / 34 and 397 / 34 of IPC, the said judgment is under

challenge in this appeal.

Learned counsel for the appellants vehemently argued that

the trial court has failed to scrutinize the evidence properly in the

light of checks available on record and wrongly relied upon the

evidence of the recovery of currency notes from an open place

accessible to others. Therefore, the finding of conviction recorded

by the learned trial court against the accused appellants u/s

302/34 of IPC ignoring the aforesaid fact is not sustainable in law.

It is also argued that the trial court has committed grave error

while relying upon the testimony of PW.10 Shanker because his

testimony is not corroborated by any other evidence. It is further

submitted that PW.9- Sikander and PW.10 Shanker, are shown to

be the witnesses who have identified the appellants roaming on

the road with "Lathi" in their hands but out of two witnesses,

Sikander turned hostile and PW.10- Shanker, specifically stated

that he did not disclose the names of the appellants to the police

during the course of investigation because she did not see the

appellants previously, therefore, it was hardly possible to identify

the appellants but learned trial court relied them as witness of last

seen, thus the judgment impugned deserves to be quashed.

While inviting our attention towards the evidence of foot

moulds, it is submitted that trial court has mainly relied upon the

evidence of foot moulds (Ex.P/34) allegedly found on the spot and

their comparison report, but the finding loudly speaks that the

trial court has acted in gross contravention of the legal provisions

and principles laid down on the subject by the Hon''ble Apex Court.

Preparing of foot moulds of the impression found on the spot has

not been corroborated by the Motbir/s, viz. Tulsi Ram and

Ratanlal, who were said to be present at the time of taking foot

moulds. The relevant witness, Kanhaiyalal (PW.13) who prepared

foot moulds, nowhere stated in his statements that moulds were

sealed and prepared by him in the presence of Motbir/s and

transported in the sealed condition to the expert for examination.

Therefore, their comparison report has lost the evidentiary value

to prove the case.

Learned counsel for the appellants further submit that

specimen footprints of the appellants were not taken in the

presence or under the order of a Magistrate in accordance with

Section 5 of the Identification of Prisoners Act, 1920, as such, the

evidence of foot impression could not be accepted, therefore,

conviction of the accused appellants on the basis of such evidence

is not acceptable.

Lastly, it is argued that recovery of cash, Lathi and repairing

bill of motorcycle on which deceased was travelling, has not been

proved beyond reasonable doubt, therefore, same evidence

cannot be utilized to connect the accused appellants with the

alleged crime because the witness of recovery of PW.19- Ramesh

Chandra, is not supporting the prosecution story, thus it is prayed

that judgment impugned may kindly be quashed.

In support of his arguments, learned counsel for the

appellants invited our attention towards the following judgments:

Mohd. Aman & Anr. Vs. State of Rajasthan reported in 1997SCC (Cri.) 777

Ishwar Singh Vs. State of Rajasthan reported in 2017 (1) Cr.L.R. (Raj.) 364

Dhanraj @ Dhand Vs. State of Haryana reported in (2014) 6 SCC 745

Sharad Birdhichand Sarda Vs. State of Maharasthra, reported in AIR 1984 SC 1622.

Learned counsel for the appellants relying upon aforesaid

judgments submit that finding of conviction recorded by the

learned trial court against the appellants for the offence u/s

302/34 IPC deserves to be quashed and they are entitled to be

acquitted from the charges levelled against them.

Per contra, learned Public Prosecutor vehemently argued

that it is a case in which although there is no direct evidence and

prosecution has relied upon circumstantial evidence of last seen,

recovery of foot mould which is reported to be matched with the

foot moulds of the appellants, therefore, there is no question to

accept the argument that prosecution has failed to prove its case

beyond reasonable doubt.

While inviting our attention towards finding of learned trial

court it is submitted that first of all inquest proceedings under

Section 174 Cr.P.C. was initiated, when the dead body of

deceased, Shambhu Lal Nai was found near the road side, but

during investigation, it was found that on the date of occurrence,

all the three appellants were seen roaming in the vicinity of the

place of incident. Therefore, the Investigating Officer made

thorough investigation and found that accused appellants were

lastly seen near the place of occurrence as per statements of

PW.9- Sikander Ali and PW.10- Shanker, and both these witnesses

support the prosecution case, therefore, the learned trial court

relied upon their testimony so as to hold accused appellants guilty

for offence u/s 302/34 of IPC on the basis of circumstantial

evidence of last seen.

Learned Public Prosecutor further submits that as per

statements of PW.19- Ramesh Chandra, it is obvious that he has

proved the recovery of "Lathi" and cash, allegedly recovered from

the appellants upon their information u/s 27 of the Evidence Act,

therefore, on the ground of recovery also, the finding of the

learned trial court does not require any interference.

So far as circumstantial evidence of matching foot mould is

concerned, it is argued that said evidence is absolutely

trustworthy for the reason that incident took place on

03/04.02.1992, and body of deceased was recovered in the early

morning. As per statements of PW.20 Amar Singh and PW.3-

Chandramohan, injured was taken to hospital, and for the purpose

of investigation, foot moulds were taken from the place of

occurrence so as to ascertain involvement of the appellants and as

per FSL report, those foot moulds were matching with shoes of the

accused appellants. Therefore, there is no reason to disbelieve the

evidence of foot moulds which is further corroborated by the FSL

report (Ex.P/34).

In view of above argument by the learned Public Prosecutor

submit that prosecution has proved its case beyond reasonable

doubt on the basis of circumstantial evidence of last seen,

recovery of cash and Lathi and repairing bill of motorcycle, on

which deceased was travelling, so also, on the basis of foot mould

taken from the place of occurrence, which were matching with

shoes of the accused appellants as per FSL report. Therefore, it is

submitted that trial court has rightly relied upon circumstantial

evidence led by the prosecution so as to hold accused appellants

guilty for the alleged offence of murder of Shambhu Lal Nai,

therefore, there is no force in this appeal and same may be

dismissed.

After hearing the learned counsel for the parties, it emerges

from the evidence of prosecution that there is no eyewitness of

the incident, but the trial court has relied upon following evidence

so as to hold accused appellants guilty for the alleged crime, viz.

(i) last seen, (ii) recovery of cash, Lathi and repairing bill of

motorcycle, on which deceased was travelling, and (iii) Report of

foot moulds taken from the place of incident purportedly of the

accused appellants, which was found to be matching with the

shoes of the accused appellants.

It is true that conviction can be based upon circumstantial

evidence of last seen, but at the time same, it is settled principle

of law as propounded by the Hon''ble Apex Court in the case of

Sharad Birdhichand Sarda (supra) that evidence of last seen must

be transparent so as to connect the accused with the crime. In the

present case, admittedly the incident took place in the intervening

night of 03/04.02.1992 and the deceased was found by the police

party at the time of patrolling lying in injured condition on the

road side at 02.00 AM on 04.02.1992. As per statements of

PW.20- Amar Singh and PW.3- Chandramohan, the place of

incident was a roadside where number of people and animals used

to pass through on the said place. The prosecution has led

evidence of two witnesses viz. PW.9- Sikander Ali and PW.10

Shanker, to prove the fact of last seen.

Upon assessment of their testimony, it is revealed that

accused were seen roaming in the vicinity but how circumstance

can connect the accused with the alleged incident as it is not the

circumstance of last seen together with the deceased. As per

evidence, accused appellants were seen in the vicinity of the place

of occurrence but said fact cannot be utilized to connect the

accused appellants with the incident because deceased was not

seen together by the witnesses PW.9- Sikander Ali and PW.10-

Shanker. It has also been emerged from the evidence that out of

two witnesses of last seen, PW.9, Sikander turned hostile and did

not support the prosecution case.

So far as statements of PW.10- Shanker is concerned, it is

obvious that said witness did not disclose the name of the accused

persons in the court statement nor he was acquainted with them

and admittedly no test identification was conducted by the

investigation agency in presence of said witness to corroborate his

statements. Therefore, the evidence led by the prosecution to

prove the fact of last seen, is totally irrelevant and wrongly taken

into consideration by the learned trial court so as to connect the

accused appellants with the alleged crime.

So far as recovery of articles is concerned, admittedly only

one witness viz. PW.10- Ramesh Chandra has been examined as

Motbir of recovery but the said witness is not supporting the

prosecution case because recovery of Lathi and cash does not

connect the accused appellants with the offence because cash is

not identifiable property, and Lathi alleged to be recovered was

not blood stained. Therefore, the said evidence of recovery of

"Lathi" and cash has wrongly been relied upon by the trial court

for the purpose of holding the accused appellants guilty.

So far as evidence of matching of food moulds is concerned,

it is obvious that there is no material on record as to how and on

what basis the prints of moulds were prepared, identified and

belong to the accused appellants. In Memo (Ex.P/10) it has been

mentioned has prints were taken in the presence of Motbir/s Tulsi

Ram and Ratanlal, but said memo does not bear the signatures of

independent witness nor these witnesses were examined during

the trial.

The witness PW.13- Kanhaiyalal, admitted in his statements

that memo(s) were not bearing any seal impression or chits to

show that they were sealed and signed on the spot. We have also

perused the statements of PW.14- Bhanwarlal, who was the In-

charge of "Malkhana". The said witness has categorically stated

that entries made in the "Malkhana" register are made on different

dates as per recovery but entered in the seriatim as they used to

left blank space in anticipation of recoveries. The other recovered

articles in connection with other cases which were recovered on

the same day, were entered on separate sheet. From the above

circumstance, we are of the opinion that prosecution has failed to

prove the foot moulds beyond reasonable doubt and in absence of

such link circumstances being proved without break, the

conviction of the appellants cannot is not sustainable in law. It is

also required to be observed that the procedure adopted for

taking moulds as well as material which was forwarded for

comparison to FSL, was absolutely contrary to Identification of

Prisons Act, 1920, which requires that measurement of a prison

arrest for an offence is required to be taken under the directions

of a Magistrate and admittedly in this case, no such procedure was

at all followed by the prosecution.

In view of above discussion, it is obvious that circumstantial

evidence produced by the prosecution has wrongly been

considered by the trial court so as to hold accused appellants

guilty because it has not been proved beyond doubt. In the case

of Sharad Birdhichand Sarda (supra) the Hon''ble Apex Court

held that the prosecution is required to prove its case beyond

reasonable doubt, if the allegation is based on circumstantial

evidence. The following parameters/ guidelines are laid down by

the Hon''ble Supreme Court to assess the circumstantial evidence,

which reads as under:-

"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:

"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.

These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."

In the case of Mohd. Aman & Anr. (supra), the Hon''ble

Apex Court made following adjudication which reads as infra:

"9. To prove the role of Mohd. Yusuf (the other appellant in Criminal Appeal No. 1749 of 1996) the prosecution relied upon the find of his finger print on a glass tumbler and his foot prints in the house of the appellant, recoveries of four silver rings belonging to the wife of the deceased and knife pursuant to his statement. It is rather surprising that even though the investigating agency claimed to have made a searching examination of the house of the deceased on April 14, 1983 and, to have seized on that day sixteen articles, four of which contained finger prints, the glass tumbler containing the finger prints was seized and the foot prints were noticed on April 24, 1983. When considered in the context of the fact that he was in custody of the police at that time the possibility of fabrication of evidence to implicate him as contended by him, cannot be altogether ruled out. This

apart, some of the reasons which weighed with us for not accepting the evidence regarding the find of finger prints, namely that there is a missing link between the identity of the articles seized and identity of the articles examined by the Finger Print Bureau and non-production of the glass tumbler during trial also persuade us not to accept the evidence adduced in proof of the above circumstance. So far as the foot prints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample foot prints were not taken before a Magistrate. This apart th e science of identification of foot prints is not a fully developed science and therefore if in a given case - unlike the present one - evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence. That brings us to the evidence relating to the recovery of the four silver rings (Ext. P.5 to P.8) belonging to the wife of the deceased pursuant to the statement made by Mohd. Yusuf. To persuade the Court to hold that the above circumstance stood established the first and the foremost fact which the prosecution was required to prove was that those articles belonged to the wife of the deceased and that they were stolen at the time of the commission of the murder. Having gone through the evidence on record we are constrained to say that the prosecution has not been able to establish those two facts and, therefore, we need not go into the question whether the evidence led by the prosecution relating to their recovery from Mohd. Yusuf is reliable pr not. The First Information Report, that was lodged by Sabir Hussain (P.W. 10), did not give any list of articles that were stolen. He however claimed to have later on given a written statement containing such a list to th e Investigating Officer and this statement was exhibited. In our considered view the trial Court was not justified in

entertaining the statement as an exhibit because it was hit by Section 162 Cr.P.c. Be that as it may, P.W. 10 and Bano (P.W. 2), another relation of the deceased, testified that within a day or two of the murder they could ascertain what articles were missing from the house. The evidence of these two witnesses on this aspect of the matter cannot be safely relied upon for they admitted that they did not have access to the house till May 1, 1983 as it was in custody of the police and therefore they could not have occasion to know what articles were stolen. Even if we proceed on the assumption that the seized articles belonged to the wife of the deceased the prosecution has led no evidence, either direct or circumstantial, to prove that they were stolen at or about the time when the murder took place. In other words, unless the prosecution conclusively establishes that the articles recovered were stolen whom the murder was committed, and not on an earlier occasion, there would be a missing link in the chain so far as the specific accusation leveled against the accused is concerned. Once it is found that the evidence relating to find of foot prints and finger prints of the appellant and the recovery of the four silver rings cannot be safely relied upon, the proof of the other two circumstance, namely that a blood stained knife was recovered after fifteen days of the incident pursuant to the statement of the accused and that few simple injuries were found on his person on April 20, 1983 when he was arrested would only raise a strong suspicion against him and not a conclusive inference of his guilt. The conviction of Mohd. Yusuf therefore cannot also be maintained."

In the case of Ishwar Singh (supra), the following

adjudication was made by the Hon''ble Apex Court while

considering circumstantial evidence of foot mould: -

"20. As per prosecution case, deceased had left his house alongwith Ishwar Singh accused on 23.05.2009 at 06:30 PM. The accused had not returned in the night till 10:00 PM. Thereafter, his wife and sons had gone for search of the deceased. On 24.05.2009 his dead body was recovered beneath a tree near Ummed Bhawan Palace. We have extensively reproduced the relevant portion from the statements of Hari (PW-5), Laxman (PW- 7), Sanwara (PW-8) and Laxmi (PW-13) made in court wherein they have deposed that they had disclosed the factum of last seen to Nanu Gurjar (PW-3). We find that the written report (Ex. P3) is totally silent regarding the deceased last seen with the accused. In the written report (Ex. P3) name of the accused has not been specified. We are at our wits to find as to why name of accused was not specified in written report (Ex. P3) if witnesses Hari (PW- 5), Laxman (PW-7), Sanwara (PW-8) and Laxmi (PW-13) had narrated to Nanu Gurjar (PW-3) the factum of deceased last seen with accused. We further find that occurrence had taken place on 23.05.2009 sometime after 06:30 PM. In the night at 10:00 PM the witnesses had contacted Ishwar Singh accused at his house. He had f ei g n e d ignorance regarding whereabouts of th e deceased. Written report (Ex. P3) was presented on 24.05.2009 at 09:20 AM. The statements of the witnesses to last seen, i.e. Hari (PW-5), Laxman (PW-7) and Sanwara (PW-8) were recorded on 25.05.2009 and statement of Laxmi (PW-13) was recorded on 27.05.2009. Had the witnesses seen the deceased with the accused they would have immediately prompted Nanu Gurjar (PW-3) or have disclosed this fact to the police on 24.05.2009 itself. We are of the view that as an afterthought evidence of last seen was introduced. In State of Rajasthan the case diary at the time of arrest is not produced before the Magistrate. Thus, we cannot say with certainty that statements of the witnesses namely

Hari (PW-5), Laxman (PW-7) and Sanwara (PW-8) under Section 161 Cr.P.C. were recorded on 25.05.2009 and of Laxmi (PW-13) was recorded on 27.05.2009 and were not antedated. Be that as it may, on 24.05.2009 the evidence of last seen had not emerged during the course of investigation. Therefore, it was introduced as an afterthought at belated stage. Thus, we disbelieve the evidence of last seen especially when Hari (PW-5) has admitted in cross examination that he was informed by police that his father has been murdered by Ishwar singh and then on 25-05-2009 his statement was recorded by police.

Evidence of lifting of foot moulds

Now we have to deal with the evidence of foot moulds lifted from the spot and specimen moulds of Chappal prepared by the Investigating Agency. As per FSL report (Ex. P26) sole impression reproduced in Ex. 1.L and Ex. 1.R is similarly to the sole of Chappal Ex. 2.L and Ex. 2.R respectively so far shape, design and dimension is concerned.

A Division Bench of this court to which one of us (Kanwaljit Singh Ahluwalia J.) was a party, in Sunder & Ors. v. State of Rajasthan [2015 (2) WLC 250], noted rule 6.26 of the Rajasthan Police Rule, 1956, as under:-

"6.26. Importance of footprints and track evidence.- (1) Footprints are of the first importance in the investigation of crime. For this reason all officers in charge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime.

(2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for the identification of suspects. The attendance of a magistrate of the highest available status, shall be secured or, if that is impossible, independent witnesses of reliable

character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity with the reasonable directions which they may give, ground shall be prepared for the tests. On this ground the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police officer conducting the test, shall record the names of all these persons and the order in which they enter the test ground. While these preparations are preceding the tracker or other witness, who is to be asked to identify the tracks shall prevented from approaching the place or seeing any of the persons concerned in the tests. When all preparations are complete the witness shall be called up and required to examine both the original tracks and those on the test ground, and thereafter to make his statement. The magistrate, or in his absence, the police officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bona fides. The officer investigating the case and his assistants shall be allowed no share in the conduct the test. Tracks found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer. The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given a fair chance, but under the strictest safeguards, of comparing with the original tracks, other tracks made on similar ground and in similar conditions.

(3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of the criminal or criminals found at the scene of the crime. In making moulds for production as evidence the following precautions should be observed:-

(a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds .

(b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting.

(c) After the procedure described in Sub-rule (2) above has been completed a mould should be prepared in the presence of the Magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the Magistrate or witnesses when still setting.

(d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court."

Dilating the above rule 6.26(3), the Division Bench in the case of Sunder and others (supra) held as under:- "Thus, Rule 6.26 (3) requires that prior to taking the impression of the footprints and before making a mould, the footprints found on scene of the crime must be pointed out to reliable witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. The said moulds have to be signed either by the Magistrate, or the witnesses. According to Rule 6.26 (3) (d), during the course of trial the mould should be produced in the court for identification by the witnesses and comparison by the court."

Admittedly, no foot moulds were prepared either in-front of the Magistrate or in-front of the witnesses.

Furthermore, in the present case provisions of Sections 4 and 5 of Identification of Prisoners Act, 1920 (hereinafter called as ?the Act of 1920?) have not been complied with. In the judgment rendered by the Division Bench in Sunder and others (supra), Sections 4 and 5 of the Act, 1920 were noted as under:-

"4. Taking of measurements, etc., of non-convicted persons.--Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.

Power of Magistrate to order a person to be measured or photographed.--If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898) [now, Code of Criminal Procedure, 1973 (2 of 1974)] it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:

Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:

Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."

The Division Bench of this Court in the case of Sunder and others (supra) on joint reading of Section 4 and 5 of the Act of 1920 and rule 6.26 of Rajasthan Police Rules, 1965 observed as under:-

" Section 5 prescribes the manner in which the measurement of a non-convicted person is to be taken. Therefore, before a foot impression of an accused can be taken during the course of investigation, the procedure as laid down by Section 5 has to be followed. A magistrate has to be satisfied in order to direct the person to allow his measurements or photographs to be taken. The said order has to be passed by the magistrate of the First Class. However, in the present case no such order has been passed by the magistrate of the First Class directing the appellants to allow the police to take their footprints.

According to Rule 6.26 of the Rajasthan Police Rules, 1965 the procedure for securing the record of such footprint shall be similar to that prescribed for holding a T.I. parade of suspects under Rule 7.31. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. For, according to Exhibit- P.34 the footprints were lifted before two Police Constable, namely Dayanand and Ghamsi Ram. The investigating officer, Gopal Singh (P.W.30) has not given any explanation for non-procuring of the Magistrate of the highest rank, and for non-procuring of a witness of reliable character."

We may also notice here that the Supreme Court in the case of Mohd. Aman V. State of Rajasthan [(1997) 10 SCC 44] has held that signs of identification of foot prints is not a fully developed signs and is a week sort of evidence for convicting the accused. We are of the view that identification of culprit has to be determined before evidence of footprint can be used for identification of the assailants. In the case of Sunder and others (supra) the Division Bench has held as under:-

"In the case of Leelaram & Ashok v. State of Rajasthan [2008(1) RLW 745], this court had expressed its opinion that foot impression mould should be taken either before a magistrate, or at his direction, or under his order. In the case of Mohd. Aman v. State of Rajasthan [(1997) 10 SCC 44], the Apex Court has disbelieved the evidence of footprint inter alia on the ground that the sample was not taken before a magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Sigh and Anr. V State of Punjab 1996 (6) SCALE 72 the Hon''ble Supreme Court opined that where the prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellants. Therefore, this court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellants."

In view of above, we cannot rely on the evidence of matching of foot moulds lifted at the spot with the sample impression of Chappal recovered from the accused."

In view of above assessment of entire evidence of

prosecution in the light of aforesaid judgments cited by the

learned counsel for the appellants, we are of the opinion that

finding of learned trial court so as to hold accused appellants

guilty for the offence u/s 302/34 of IPC on the basis of

circumstantial evidence, cannot be accepted because there is

serious doubt upon the circumstantial evidence of last seen,

recovery of articles and foot moulds, therefore, judgment

impugned deserves to be quashed and set aside.

Consequently, while giving benefit of doubt appeal being

D.B. Criminal Appeal No.530/1995- Dhoom Singh & Ors. Vs. State

of Rajasthan is hereby allowed, the judgment impugned 21st Oct.

1995 passed by learned Addl. Sessions Judge, Bhilwara in Session

Case No.17/1992, convicting and sentencing the accused

appellants for the offence u/s 302/34 of IPC, is hereby quashed

and set aside. The appellants are on bail, their bail bonds are

hereby discharged.

In view of disposal of D.B. Criminal Appeal No.530/1995-

Dhoom Singh & Ors. Vs. State of Rajasthan, the Jail Appeal

No.138/1996-Mathew & Ors. Vs. State of Rajasthan, is also

disposed of in same terms.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellants are directed to forthwith furnish

personal bonds in the sum of Rs.20,000/- and a surety bond in

the like amount each, before the learned trial court, which shall be

effective for a period of six months to the effect that in the event

of filing of Special Leave Petition against the judgment or for grant

of leave, the appellants, on receipt of notice thereof, shall appear

before Hon''ble the Supreme Court.