Manoj Kumar and Others vs State of Rajasthan

R.S. Chauhan, J.—Three different appeals have been filed by four different appellants before this court. Manoj Kumar, and Manjeet Kumar @ Billu have filed D.B. Criminal Appeal No. 923/08; Balraj @ Tiloo has filed D.B. Criminal Appeal No. 844/08; Vijay Singh @ Sunder has filed D.B. Criminal Appeal No. 606/10. The four appellants are aggrieved by Judgment dated 26-7-2008, passed by the Additional Session Judge (Fast Track) No. 3, Headquarters Khetri, District Jhunjhunu. By the said judgment, the learned Judge has convicted all the accused-appellants for offences under Sections 364/120B, 302/120B, 396 and 201 IPC and sentenced them as under:-

"U/s. 364/120B IPC: Life imprisonment, imposed with a fine of Rs. 500/- and to further undergo two months rigorous imprisonment in default thereof.

U/s. 302/120B IPC: Life imprisonment, imposed with a fine of Rs. 500/- and to further undergo two months rigorous imprisonment in default thereof.

U/s. 396 IPC: Life imprisonment, imposed with a fine of Rs. 500/- and to further undergo two months rigorous imprisonment in default thereof.

U/s. 201B IPC: Three years rigorous imprisonment, imposed with a fine of Rs. 300/- and to further undergo one month''s rigorous imprisonment in default thereof.

All the sentences were to run concurrently."

Since these three appeals challenge the same judgment, they are being decided by this common Judgment.

Briefly the prosecution case is that on 28-4-07, Pawan Kumar Sharma (P.W. 1) submitted a written report (Ex. P. 1) before the SHO, Police Station Khetri, wherein he claimed that "I, Pawan Kumar s/o Shri. Radheshyam Sharma, r/o Nanu Wali Bavadi Ki Dhani, Tehsil Khetri, am resident of the said address. My brother, Ashok Kumar Sharma parks his Bolero Jeep, bearing registration No. RJ-18 UA-0871, at Nizampur Moad (Khetri). He takes bookings for the said jeep and runs it as a taxi. On 26-4-07, around 5:00 PM, two boys came to my brother, hired his jeep for Lambi Sahad, and left for the said place with him. My brother was supposed to return that night. But neither Ashok has returned, nor has the jeep come back. We have tried to locate him, but we have not been able to discover him. I can recognize the two boys if they were produced before me. I suspect that in order to misappropriate the jeep, these two boys have abducted my brother. I am filing this report so that appropriate action may be taken."

On the basis of the said report, a formal FIR (Ex. P. 2), namely FIR No. 122/07, was registered at Police Station Khetri, District Jhunjhunu, for offence under Section 365 IPC. The investigation commenced. During the course of the investigation, the appellants Balraj @ Tillu, Vijay Kumar, Manjeet Kumar @ Biloo, Manoj Kumar, and Surendra Kumar were arrested. Since Surendra Kumar was a juvenile delinquent, he was not put up for trial along with the present appellants. The learned trial court charged the appellants for offences under Sections 364, 364/120B, 302/120B, 396, and 201 IPC. In order to prove its case, the prosecution examined eighteen witnesses, and submitted about sixty-five documents. Although the defense did not examine any witness, it did submit four documents. After going through the evidence, by judgment dated 26-7-08, the learned Judge convicted and sentenced the appellants as aforementioned.

Before this court delineates the respective contentions of different counsel for the various appellants, for the sake of clarity, it would be profitable to deal with the salient features of this case, and to move through the facts of the case in chronological order. Firstly, according to the prosecution, the two boys who hired Ashok''s taxi were Vijay and Surendra. Thus, Ashok, the deceased in this case, was last seen in their company. Secondly, Vijay was identified by Pawan (P.W. 1), and Rajendra Kumar (P.W. 8). Thirdly, the police recovered a towel from Vijay''s house. Fourthly, from other appellants the police recovered different articles: Ashok''s dead body was discovered at the behest of Balraj; allegedly at his instance, the police also recovered the Bolero jeep which was operated by Ashok. The police also recovered a ''lathi'' (bamboo stick) as according to the prosecution, Ashok was initially assaulted with a blunt weapon, and subsequently strangulated with the use of a towel. From Manjeet, the police recovered one tape recorder, which was allegedly in the taxi, and one wrist watch which allegedly belonged to the deceased. From Manoj Kumar, the police recovered another Bolero jeep which was allegedly used in the commission of the crime; it also recovered the papers of Ashok''s Balero jeep. Thus, the entire prosecution case is based on the evidence of ''last seen'', the discovery of Ashok''s dead body at the instance of Balraj, on identification of Vijay, and on recovery of certain articles/objects from different appellants.

According to the prosecution, on 28.4.2007, Balraj was arrested by arrest memo (Ex. P.36). Upon his information, the Ashok''s dead body was discovered from a well situated at Dhaka Mandi Tan Peepali Johadi. The said recovery was made before two independent witnesses, namely Mr. Kishan Lal (P.W.2) and Mr. Ramavtar (not examined by the prosecution) by recovery memo (Ex. P. 9). During his police custody, on 5.5.2007, Balraj made a statement (Ex. P. 49) under Section 27 of the Evidence Act pursuant to which the police recovered a bamboo stick by recovery memo (Ex. P. 27) from his house. Lastly, upon his statement (Ex. P. 50) dated 7.5.2007 under Section 27 of the Evidence Act, the police also recovered a Bolero Jeep by recovery memo (Ex. P.38). The said recovery was witnesses by Rati Ram (P.W.18) and Subey Singh (P.W.14). However, both these witnesses are police personnel and not independent witnesses. According to the prosecution, the appellants have not only killed Ashok, but had also taken away his Bolero Jeep whose original registration number was RJ18-UA-0871. However, subsequently, the number plate was changed by the appellants. Therefore, the Bolero Jeep recovered at the instance of Balraj bore the registration No. MH12-TR-9211. According to the prosecution, the chassis number of this Jeep is 2GFK27C18910.

On 2.5.2007, the police arrested Vijay by arrest memo (Ex. P. 33). On 5.5.2007, he made a statement (Ex. P. 46) under Section 27 of the Evidence Act. Consequently, by recovery memo (Ex. P. 20), the police recovered a towel from Vijay''s home. According to the prosecution, it is this towel which was used for strangulating Ashok. Subsequently, on 19.5.2007, Vijay was subjected to test identification parade. The test identification parade was held by Smt. Rajuka Singh Hooda (P.W.15), a Judicial Magistrate. Both Pawan Kumar (P.W.1) and Rajendra Kumar (P.W.8) identified Vijay as the person who had come along with another boy (Surendra Kumar) for hiring the Jeep from Ashok. Thus, the two pieces of evidence against Vijay is identification, and the recovery of the towel.

Further, on 29.4.2007 the police arrested Manjeet Kumar @ Billu by arrest memo (Ex. P.44). On 5.5.2007 he made a statement (Ex. P.45) under Section 27 of the Evidence Act whereby he informed the police that the deck (tape recorder of the Bolero Jeep) and the wrist watch of the deceased can be recovered from his house. Consequently, by recovery memo (Ex. P.29), the police recovered a tape recorded from Manjeet Kumar''s house. Moreover by recovery memo (Ex. P.31), the police recovered a wrist watch bearing the words "Kissan Quartz Watch". Both these recoveries were made before Rajendra Kumar (P.W.8), the brother of the deceased, and one Hanuman who has not been produced by the prosecution as a witness.

Moreover, on 8.5.2007 the police arrested Manoj Kumar by arrest memo (Ex. P. 34). Manoj Kumar made a statement (Ex. P. 39) under Section 27 of the Evidence Act whereby he informed the police that he could get the Bolero Jeep recovered which was used by the culprits for the purpose of committing the crime, and could get the papers of the Bolero jeep which was operated by Ashok recovered from his house. Consequently, by recovery memo (Ex. P. 22) the police recovered a Bolero Jeep from his house. The said recovery was witnessed by Mr. Jagveer Singh (P.W. 7) and Mr. Mool Chand (P.W. 10). Moreover, by recovery memo (Ex. P. 22), the police recovered the jeep papers, such as the Registration Certificate, the insurance papers, etc. which belonged to the jeep operated by Ashok.

Clarity demands that each appeal be discussed separately, but within this judgment. Therefore, this court shall deal firstly, with Balraj''s appeal, then deal with Vijay''s appeal, and lastly discuss Manjeet Kumar''s and Manoj Kumar''s appeal.

Balraj @ Tiloo, D.B. Criminal Appeal No. 844/08:

Mr. Amit Poonia, the learned counsel for the appellant, Balraj, has raised the following contentions: firstly, the recovery of Ashok''s dead body at the instance of Balraj is highly suspicious. For, Balraj was arrested on 28.4.2007 by arrest memo (Ex. P.36). Even before he allegedly made a statement under Section 27 of the Evidence Act which led to the alleged recovery of the dead body, the arrest memo (Ex. P. 36) indicates that he has been arrested for offence under Section 302 IPC. Interestingly, the FIR (Ex. P.2) was registered for offence under Section 365 IPC. Thus, at the time of his arrest, even the police did not have any inkling that Ashok may have been murdered. Moreover, for this particular recovery, the police had failed to associate two independent witnesses. Instead, it had associated Ashok''s uncle (Phoopha), Kishan Lal (P.W.2). The independent witness, Ramavtar, has not been produced as a prosecution witness. Most importantly, Basant Singh (P.W.5), an independent witness, shatters the prosecution case vis-�-vis the recovery of the Ashok''s dead body. For according to him, the body was already discovered on 28.4.2007 in the well, although it was recovered on 29.4.2007. Since the police had already located the body on 28.4.2007, its discovery, on 29.4.2007, at Balraj''s instance loses its significance.

Secondly, the prosecution claims that Ashok''s Bolero Jeep was discovered at Balraj''s behest, by recovery memo (Ex. P.38). But according to Mr. Raj Kumar Sharma (P.W.13), In-charge of Police Station, Khetri, the said Bolero was recovered on a secret information given by a Mukhbir (informant). Moreover, according to Subey Singh (P.W.14), the recovery witness of the recovery of the Bolero Jeep, the Jeep was recovered standing on a road opposite a Dharamshala. Hence, the Bolero Jeep has been recovered not from the possession of Balraj, but from an open place. The testimony of Subey Singh (P.W. 14) is further corroborated by the Site Plan (Ex. P.23) of the place of recovery.

Thirdly, the Bolero jeep has not been identified either by Pawan Kumar (P.W.1) the complainant and the brother of the deceased, or by Radheyshyam Sharma (P.W.3), the father of the deceased, or by Rajendra Kumar (P.W.8), another brother of the deceased. Thus, it is unclear whether the jeep, recovered allegedly at Balraj''s behest, was really operated by Ashok or not. Moreover, even if the prosecution insists that the Chassis Number of this jeep matches with the Chassis Number given in the Registration Certificate, recovered from Manoj, even then it is unclear at whose instance the jeep was recovered. Thus, it cannot be said with clarity and conviction that the jeep was recovered at Balraj''s instance.

Lastly, as far as the recovery of the lathi is concerned from the possession of Balraj, it was recovered before Rajendra Kumar (P.W.8) and Hanuman. While Rajendra Kumar (P.W.8) happens to be brother of the deceased, Hanuman is the only independent witness. Yet Hanuman has not been produced by the prosecution. Therefore, the prosecution has withheld a material witness. Hence an adverse inference should be drawn against the prosecution. Moreover, even if the FSL Report (Ex. P.52) does show the presence of human blood on the lathi, but even then the recovery is not sufficient to connect Balraj to the alleged crime. For, the prosecution has failed to prove that the human blood belonged to the deceased. Further it has failed to eliminate the possibility that the human blood on the lathi did not belong to Balraj.

On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, and Mr. M. Kaushik, the learned counsel for the complainant, have claimed firstly, the dead body was recovered at Balra''s instance. The said recovery has been vouched for by Kishan Lal (P.W.2).

Secondly, even Ashok''s Bolero Jeep was discovered at Balraj''s instance.

Thirdly, the said Jeep had the same Chassis number which was shown in the registration certificate of the Bolero Jeep discovered from Manoj Kumar, a co-accused in the case.

Fourthly, the recovery of the Jeep at Balraj''s instance, and the recovery of papers of the Jeep from Manoj''s possession clearly prove the existence of a criminal conspiracy between the two. Furthermore, the identification of Vijay Singh as the person who hired Ashok''s services and his taxi duly establishes the criminal conspiracy between Balraj, Manoj Kumar and Vijay.

Heard the learned counsel for the parties, examined the record, and perused the impugned judgment.

In case of dacoity, the evidence available is generally of three types, namely (i) the culprits are caught red-handed on the spot. However, this happens rarely as ordinarily the culprits are fully armed and well prepared, whereas the victims are fear stricken and concerned more with their own safety rather than in combating the miscreants; (ii) Identification of the culprits when they are later arrested during the investigation; (iii) Discovery of the incriminating facts such as looted property, or weapon used in the commission of the crime, and other objects. Thus, a case of dacoity may be based on direct evidence or circumstantial evidence, or on combination of both. The present case is partially based on either the identification of one of the culprits, and mostly based on recoveries made by the investigating agency. Therefore, before the appellants can be held guilty of offence under Section 396 IPC, this court has to separate the wheat from the chaff through careful and meticulous reading of the evidence.

Moreover, the cases of Balraj, Manjeet and Manoj is entirely based on circumstantial circumstances. Therefore, the principles governing a case based on circumstantial case would have to be kept in mind: all the links in the chain of circumstances should unerringly point to the guilt of the culprit.

According to Rajkumar (P.W.13), on 28.4.2007, he was posted at Police Thana Khetri on the post of S.I. However, on that date he was having the charge of SHO. According to him, at 9:00 AM, Pawan Kumar Sharma (P.W.1) submitted a written report (Ex. P.1) before him. On the basis of the said written report, a formal FIR (Ex. P.2) was chalked out for offence under Section 365 IPC. Further, according to him, the dead body of Ashok was discovered at the instance of Balraj. The said body was discovered from a well situated at Dhaka Mandi Ke Tan Peepali Chohadi. The recovery memo of the dead body is Exhibit-P.9 which has been signed both by Balraj as well as by this witness. The said recovery was confirmed by Kishan Lal (P.W.2).

However, the veracity of this recovery has been challenged by Balraj. For the reasons stated herein below, the said recovery is suspect:-

"Firstly, admittedly the FIR (Ex. P.2) was registered for offence under Section 365 IPC. For, according to Pawan Kumar (P.W.1), his brother, Ashok, has been abducted. Thus on 28-4-2007, the police did not have any information that Ashok had been killed. Yet surprisingly, Balraj''s arrest memo (Ex. P. 36) shows that he has been arrested on 28.4.2007, at 6.00 PM, for offences under Sections302, 394, 201 IPC. How Balraj could be arrested for offence under 302, 394 and 201 IPC on that date, especially when the police was in the dark about Ashok''s murder, remains a mystery. Therefore, mentioning of these offences in the arrest memo clearly reveals that either the arrest memo has been drawn up much later in the investigation, or Balraj was not arrested on 28.4.2007". 24. Most importantly, Basant Singh (P.W.5), an independent witness, states in his examination-in-chief that "on 28.4.2007 we had gone to a well situated at Pipali Johadi which is situated at Village Kalva and Jharoda. We had gone and seen the said well. It is called Pipali Johadi. The well belongs to the Water Works Department. We had gone and seen the well. However, as the boring machine was not available on that day, on 29.4.2007 we had gone to the well between 8.00 or 9.00 AM. We were taken by Hanuman Singh Thanedar. With the help of a machine attached to a Jeep, the dead body was pulled out. The corpse was rotting and maggots had appeared on the body. The corpse was blotted. Police and about fifteen to twenty persons were present at the spot." In his cross-examination he stated that "there are iron angles on the two sides of the well. The iron angles are separated by 3 ft. each. After looking at the accused persons present in the court, he stated that none of these persons were present at the spot." He further claimed that "on 28th he had gone to the well in order to check the well with the Thanedar (SHO)." In his re-examination by the Additional Public Prosecutor, he claims that "on the second day on 29.4.2007 those fifteen to twenty persons who were present, I do not recognize them."

Basant Singh (P.W. 5) knocks the bottom out of the prosecution story qua the recovery of the dead body at the instance of Balraj. For, according to him, the police had already visited and examined the well on 28.4.2007 itself. Since the boring machine was not available, they had abandoned their endeavour to pull the dead body out. Thus, Ashok''s dead body was already discovered on 28-4-2007. Further, according to this witness, on 29.4.2007 none of the accused persons, including Balraj, were at the well when the body was recovered. Thus, even before Balraj was arrested and allegedly gave a statement under Section 27 of the Evidence Act, the police had already known that Ashok''s dead body is in the well. Moreover, on the date of recovery of the dead body on 29.4.2007, Balraj was not present when the dead body was present. Hence, the prosecution is not justified in claiming that the dead body was recovered at Balraj''s instance.

The learned Judge has also failed to notice that according to Section 100(4) Cr.P.C. for the purpose of search and seizure, the police are required to associate two independent witnesses. However, for the recovery of the dead body the police had associated Kishan Lal (P.W.2). But Kishan Lal in his cross-examination clearly admits that he is Ashok''s uncle (Phoopha, i.e. the husband of the paternal aunt). Thus, he is not an independent witness. Curiously, the other recovery witness, namely Ramavtar has not been produced by the prosecution. Therefore, the prosecution has withheld a material witness from the court. A grave possibility does exist that like Basant Singh (P.W.5), Ramavtar too would have testified against the interests of the prosecution. The conduct of the investigating agency and of the prosecution, therefore, raises many doubts about the veracity of the recovery of the dead body at the instance of Balraj.

Surprisingly, the learned Judge has totally ignored the testimony of Basant Singh (P.W.5) while discussing the evidence about the recovery of the dead body. Thus, the learned Judge has ignored a crucial piece of evidence which was readily available on record. The said testimony challenges the position taken by the prosecution.

The prosecution has also harped on the fact that the Bolero Jeep which was operated by Ashok was recovered at the behest of Balraj. However, even this recovery is under cloud. Firstly, both according to Rajkumar (P.W.13) and Nawab Khan (P.W.17), both the investigating officers, the said Jeep was recovered on information given by a Mukhbir (a secret informer). Moreover, according to Subey Singh (P.W.14), the said Jeep was recovered standing on a road opposite a ''Dharamshala''. Thus, the said Jeep was not recovered from Balraj''s possession, but from a road. Thus, it was recovered from an open place.

Most importantly, the Jeep has not been identified either by Pawan Kumar (P.W.1), Radheyshyam (P.W.3), or by Rajendra Kumar (P.W.8). According to the prosecution, the Jeep was identified by Raj Kumar (P.W.13), the first investigating officer. However, it is unclear on what basis he identified the Jeep? For, neither in the FIR, nor in the statements of Pawan Kumar (P.W.1), Radheshyam (P.W.3) and Rajendra Kumar (P.W.8), given under Section 161 Cr. P. C., was the police informed about the chassis number and the engine number of the Jeep that belonged to Ashok.

Further, there is a discrepancy in the description of the Jeep given in the recovery memo (Ex. P.38). According to the recovery memo (Ex. P.38), there are two seats in the front row which are separated, whereas according to Raj Kumar (P.W.13), the witnesses had told him that the Jeep had a seat for the driver and two seats for the passenger on the front row. Thus, there should have been three seats in the front row. Moreover, according to the prosecution, the tyres and the window glass were changed. Furthermore, since the papers belonging to this Jeep were not recovered till much later, on 28.4.2007, the police could not have tallied the chassis number with the registration certificate of the Jeep. Hence, it is extremely doubtful whether the Jeep was recovered at the instance of Balraj, or it was recovered at the information of a Mukhbir. Moreover, it is doubtful as to whether the Jeep allegedly recovered on 28.4.2007 was operated by Ashok or not. Even if it is claimed that the chassis number of the recovered Jeep does tally with the chassis number given in the registration certificate, but even then the recovery cannot be read against Balraj. For, as mentioned above, according to Rajkumar (P.W.13) and according to Nawab Khan (P.W.17), the Jeep was recovered upon information given by a secret informer. Hence, the said recovery does not connect Balraj to the alleged crime.

The third evidence read against Balraj is recovery of a bamboo stick from his house by recovery memo (Ex. P.27). However, even this recovery is not above doubt. For, again the police had associated Rajendra Kumar (P.W.8), a related witness, and one Hanuman. Rajendra Kumar is not an independent witness as he is related to the deceased; yet Hanuman has never been examined as a prosecution witness. Thus, the prosecution has again withheld an important witness from the court. Thus, an adverse inference should be drawn against the prosecution. Moreover, according to Nawab Khan (P.W.17), at the one end of the stick, some blood was recovered. According to the FSL Report (Ex. P.52), the blood recovered was of "human origin". But the prosecution has neither eliminated the possibility that the human blood could belong to Balraj, nor established the possibility that the human blood did belong to the deceased. Therefore, mere presence of the human blood on the bamboo stick would not connect Balraj to the alleged crime. In the case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, , the Hon''ble Supreme Court has observed as under:-

"28. The discovery of a blood stain of the B Group measuring 0.5 cm. in diameter on the appellant''s pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. ''B'' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group." 32. Therefore, unrelated pieces of evidence produced by the prosecution are not as such which form a convincing chain of circumstances unerringly pointing to the guild of Balraj. The prosecution has not been able to submit any cogent and convincing evidence with regard to the involvement of Balraj in the alleged offences.

Vijay Singh @ Sunder, D.B. Criminal Appeal No. 606/10:

Mr. Mahesh Gupta, the learned counsel for the appellant Vijay Singh, has pleaded firstly, Pawan Kumar (P.W.1), the complainant, has not given any description of the two boys who came to hire the taxi. Neither in the FIR, nor in the statement under Section 161 Cr.P.C. no such description exists. If a T.I. parade is to succeed, it must precede with the description of the accused.

Secondly, the test identification parade carried out by Renuka Singh Hooda (P.W.15) was not conducted properly as similar looking persons were not mixed with Vijay Singh.

Thirdly, mere identification of an accused, in a test identification parade, is a weak sort of evidence for convicting the accused for offence under Section 396 IPC. According to Vijay, he was shown to both the witnesses prior to the identification parade.

Fourthly, the recovery of the towel has not been supported by Dwarka Prasad (P.W.6) who has turned hostile. Further, even if the said recovery were to be believed, there is no evidence that Ashok was strangulated with the use of this particular towel. Since the towel was not shown to Dr. Radheyshyam Sharma (P.W.12) who conducted the autopsy, the prosecution has failed to prove that this particular towel was used for strangulating Ashok. Further, towels are common objects which can be discovered in anyone''s house.

Lastly, no incriminating evidence, such as the blood of the deceased, has been extracted from the towel. Thus, the recovery of mere towel does not connect Vijay Singh to the alleged crime.

On the other hand, Mr. Aladeen Khan, and Mr. Kaushik have pleaded that according to Renuka Singh Hooda (PW.13), she carried out the test identification parade strictly in accordance with law. In her testimony, she has described as to how the T.I. parade was carried out. Moreover, her testimony is further corroborated by testimonies of Pawan Kumar (P.W.1) and Rajendra Kumar (P.W.8). Thus, the prosecution has succeeded in proving that Vijay Singh had come and spoken to Ashok for hiring his taxi.

Further, according to Pawan Kumar (P.W.1), and Rajendra Kumar (P.W.8), Ashok was seen for the last time in the company of Vijay Singh and Surendra Kumar (the juvenile delinquent). But Vijay Singh has not explained as to what became of Ashok after they had left for Lambi Sahad. Since this information was specifically in his knowledge, under Section 106 of the Evidence Act, it was for Vijay to explain as to what became of Ashok after they were last seen together.

The learned Public Prosecutor has also emphasized the fact that upon Vijay''s statement a towel, which was used for strangulating Ashok, was recovered from his house by recovery memo (Ex. P.20). Thus, the article used for committing the murder was recovered from his possession. Hence, both identification and recovery of the weapon should be read against Vijay.

Pawan Kumar (P.W.1) in his examination-in-chief tells the court that "on 26.4.2007 around 5:00 PM, he and both his brothers, Rajendra and Ashok, were sitting at his shop. At 5:00 O''clock, two boys came to his shop and inquired about the driver of the Bolero Jeep. They spoke to Ashok. They told him that they need to hire his vehicle in order to go towards Sahad. Both the boys hired Ashok''s Jeep and went towards Singhana. While leaving, Ashok told him that I will go and drop these two boys at Lambi Sahad and that I shall be back. However, he did not return till the evening. On 24.7.2007 we searched for him. But, we neither recovered his Jeep, nor could discover my brother." A similar testimony has also been given by Rajendra Kumar (P.W.8).

After Vijay''s arrest, he was subjected to a test identification parade. According to Renuka Singh Hooda (P.W.15), "on 17.5.2007 she was posted as Judicial Magistrate at Khetri. On that date, the SHO, Police Station Khetri submitted a written application for conducting the test identification parade of two accused persons, namely Surendra and Vijay Singh." According to her, "for conducting the test identification parade, summons were issued to Pawan and Rajendra. The test identification parade was held on 19.5.2007." Furthermore, according to her, "Pawan and Rajendra identified both the accused persons. The identification was done in accordance with law. Eight persons were mingled with the accused persons and both the witnesses were asked to identify them at different times." In her cross-examination, she denied the fact that the witnesses were shown to the accused persons prior to the test identification parade. Even Pawan Kumar (P.W.1) and Rajendra Kumar (P.W.8) have described the holding the T.I. parade in detail in their testimonies. Hence, this court has no doubt that Vijay Singh was identified by both Pawan Kumar (PW.1) and Rajendra Kumar (P.W.8).

Considering the fact that there is evidence of last seen as testified by Pawan Kumar (P.W.1) and Rajendra Kumar (P.W.8), considering the fact that both these witnesses have correctly identified Vijay Singh, it was incumbent upon Vijay Singh to explain as to what happened to Ashok after he was seen on the last occasion with him and with Surendra (the juvenile delinquent). But Vijay Singh has not offered any explanation. In his statement recorded under Section 313 Cr.P.C., he merely denies the test identification memo (Ex. P.5). Thus, his silence creates a suspicion that he may have committed the alleged murder of Ashok.

Although the prosecution has tried to strengthen its case against Vijay Singh on the basis of recovery of a towel, but the recovery is immaterial in the present case. For, the prosecution has failed to prove that Ashok was strangulated with the use of this particular towel. Furthermore, Dr. Radheyshyam Sharma (P.W.12) was not even shown the towel during the course of his testimony in order to find out whether the ligature marks on Ashok''s neck can be co-related to the towel or not. Furthermore, discovery of towel is innocuous as towel is a common article which can be discovered in most of houses. Lastly, despite the fact that the prosecution claims that Ashok was assaulted with the wooden stick allegedly discovered at the instance of Balraj, the towel does not have any blood stained on it. Hence, the recovery of the towel, even if believed, would not connect Vijay to the alleged crime.

Hence, the three pieces of evidence stand out against Vijay: firstly, the evidence of the last seen; secondly, his silence about Ashok''s whereabouts; thirdly, his identification by Pawan Kumar (P.W.1) and by Rajendra Kumar (P.W.2).

Before a person can be convicted, the prosecution must cover the distance between "may be true" and "must be true." However, by establishing the three pieces of evidence, mentioned above, the prosecution has failed to cover the said distance. At best, there is a strong suspicion that Vijay may have been involved in the murder of Ashok. But there is no proof that he must have been involved in his murder. In catena of cases, the Hon''ble Supreme Court has held that last seen is a weak sort of evidence. It is too weak a piece of evidence to convict a person. Even the identification by Pawan Kumar (P.W.1) and Rajendra Kumar (P.W.2) does not unerringly point to the guilt of Vijay. His silence about the whereabouts of Ashok may be a weakness of the defense, but the weakness of the defense does not strengthen the case of the prosecution. Most importantly, it would be utterly unjust to convict Vijay merely on the basis of a strong suspicion.

Manjeet Kumar @ Billu and Manoj Kumar, D.B. Criminal Appeal No. 923/08:

Mr. Suresh Sahni, the learned counsel for Manjeet Kumar and Manoj Kumar, has raised the following contentions before the court: firstly, the alleged recovery of the tape recorder by Exhibit-P.29 and the alleged recovery of the wrist watch by Exhibit-P.31 is suspect. For, instead of carrying out the said recovery in conjunction with the independent witnesses, the police have carried out the said recovery with the help of Rajendra Kumar (P.W.8), an interested witness. Moreover, the other recovery witness, namely Hanuman, who is an independent witness, has never been produced by the prosecution as a witness. Therefore, the recovery is in violation of the procedure established by law.

Secondly, neither the tape recorder, nor the wrist watch was ever subjected to a test identification parade. Despite the fact that Pawan Kumar (P.W.1), Radheyshyam (P.W.3), Rajendra Kumar (P.W.8) were readily available to the investigating agency, the police never asked them about these items in a test identification parade. Therefore, the prosecution has failed to prove that either the tape recorder belonged to the Bolero Jeep which was used by Ashok as a taxi, or that the wrist watch was his. Hence, the said recovery is meaningless.

Thirdly, Manjeet Kumar and Manoj Kumar were never identified by any of the witnesses. Therefore, there is neither identification, nor recovery of any article/object which could connect these appellants to the alleged crime.

Fourthly, as far as recovery of Bolero Jeep bearing registration No. RJ18-UA-0702 at the instance of Manoj, it is equally immaterial. For, although the prosecution claims that the said Bolero was used by the culprits for committing the crime, no incriminating evidence has been recovered from the said Bolero. Hence, the said recovery does not connect Manoj to the alleged crime.

Fifthly, as far as the recovery of the papers of the Jeep operated by Ashok is concerned, the said recovery has not been supported by Jagveer (P.W.7). The other witness Mool Chand (P.W.10) happens to be police personnel. Therefore, the said recovery cannot be said to be in accordance with law.

Eighthly, since the recoveries made from different accused persons are unreliable, the prosecution has failed to prove the existence of a criminal conspiracy amongst the four accused persons.

Lastly, the learned Judge has erred in convicting and sentencing the accused persons for both the offences under Section 302 IPC and under Section 396 IPC. Since the offence under Section 396 IPC itself includes the offence of murder, the appellants could not have been convicted for offence under Section 302 IPC.

On the other hand, Mr. Aladeen Khan and Mr. Kaushik have pleaded against the appellant, Manjeet Kumar, firstly, the prosecution has established the recovery both of the tape recorder and the wrist watch from his possession. Manjeet Kumar has failed to explain his possession of these two articles. Therefore, the prosecution has proven that the looted articles were recovered from this accused person. The recovery of looted articles clearly establishes the criminal conspiracy which existed between Vijay, Balraj, Manoj Kumar and this accused person. The conspiracy was precisely for committing dacoity and murder. Hence, the learned Judge was justified in convicting Manjeet Kumar for offence under Section 396 IPC read with Section 120B IPC and for other offences, mentioned above.

As far as Manoj Kumar is concerned, the learned Public Prosecutor has pleaded that the police had recovered the car papers of the Bolero Jeep which belonged to Ashok''s family from this accused. The said recovery has been supported by Mool Chand (P.W.10). Since the recovery was made from Manoj Kumar''s possession, it was for him to explain as to how he came into possession of car papers connected with the Jeep belonging to Ashok''s family. However, no such explanation has been offered by him. Thus, his silence speaks volumes about his guilt.

Heard the learned counsel for the parties.

The prosecution has stressed on the recovery of the tape recorder and of the wrist watch from Manjeet in order to ensure his conviction. According to Nawab Khan (P.W.17), Manjeet was arrested on 29.4.2007 by arrest memo (Ex. P.44). On 5.5.2007, he made a statement (Ex. P.45) for getting a tape recorder and a watch recovered from his house. Consequently, on 5.5.2007, in presence of Rajendra Kumar (P.W.8) and Hanuman, a tape recorder and a wrist watch were recovered from Manjeet''s home.

Interestingly again for this recovery, Rajendra Kumar an interested witness has been associated by the police. There is no reason offered by Nawab Khan for not associating independent witnesses. Thus, the recovery is not in accordance with the mandate of the law. On the other hand, Hanuman, an independent witness, has not been examined by the prosecution. Again the prosecution has withheld a material witness. Thus, an adverse inference should be read against the prosecution.

Most pertinently, neither the tape recorder, nor the wrist watch has ever been subjected to the T.I. Parade. Even if Rajendra Kumar (P.W.8) had identified the tape recorder and the wrist watch as belonging to Ashok, even then such identification is absolutely meaningless in the eyes of law. For, according to Rajasthan Police Rules, 1965, an object which is recovered has to be subjected to a test identification parade in order to assess its objective identification by a witness. Since neither the tape recorder, nor the wrist watch was subjected to a test identification parade, it would be too conjectural to presume that the tape recorder came from the Jeep and the wrist watch belonged to Ashok. Therefore, the recovery is insignificant. It does not connect Manjeet to the alleged crime. If he were to be convicted on the basis of this flimsy recovery, he would be convicted on the basis of conjectures and surmises. But under criminal jurisprudence, a moral conviction is impermissible. The conviction has to be a legal one.

As far as Manoj is concerned, the prosecution has harped on the recovery of a Bolero Jeep bearing registration No. RJ 18-UA-0702 and on the recovery of the papers of the Bolero Jeep operated by Ashok. So far as the first recovery is concerned, but for the statement made by Manoj that the said Jeep was used in the commission of the crime, there is no other evidence available with the prosecution. However, as the said statement was made under Section 27 of the Evidence Act, the said statement cannot be read against Manoj. Furthermore, since no incriminating evidence was recovered from the said jeep, therefore the recovery of the said Bolero from Manoj''s house does not connect him to the alleged crime.

The prosecution has tried to prove the recovery of the registration papers and of the insurance papers belonging to the Jeep operating by Ashok by producing Jagveer (P.W.7) and Mool Chand (P.W.10). However, Jagveer has turned hostile and has not supported the case of the prosecution. Although it is true that Mool Chand is police personnel, but in the case of Rohtash Kumar Vs. State of Haryana, , the Hon''ble Supreme Court has opined that where police officers are witnesses to a recovery, their evidence cannot be discarded only on the ground that they are police officers. Thus, Mool Chand''s testimony cannot be rejected on a ground that he happens to be a police officer.

Mool Chand (P.W.10) claims that "on 10.5.2007, he was working as F.C. in the Police Station, Khetri. On that day, we had gone with SHO, Nawab Sahab to Satnali. At the instance of Manoj Kumar, we recovered a vehicle bearing registration No. RJ18-UA-0871 and recovered its papers. But then the witness said that the papers belonged to a vehicle bearing No. RJ18-UA-0871, but the vehicle which was recovered its registration number was RJ18-UA-0702 which was recovered from front of Manoj''s house". According to him, Ex. P.22 is the recovery memo of the registration papers and other papers recovered from Manoj, and Ex. P. 23 is the recovery memo of the Bolero Jeep bearing registration No. RJ18-UA-0703. Although this witness has been subjected to a lengthy cross-examination, but he has not been shattered. Therefore, there is no reason for doubting the veracity of his testimony.

Even if the recovery were to be accepted, even then it is too delicate a piece of evidence for convicting Manoj. For, but for this recovery, no other piece of evidence exists against Manoj. Of course, Manoj''s silence about his possession of these papers does create a suspicion against him. But he cannot be convicted for offence under Section 396 or under Section 302 IPC only on the basis of ethereal suspicion.

The evidence produced by the prosecution against Balraj, Manjeet and Manoj is disjointed; it is not interlinked to the extent of forming a chain of circumstances which unerringly point to their guilt. The evidence of identification against Vijay is also too weak for convicting him of the charges framed against him. Since the prosecution has failed to prove the offences under Section 302, or under Section 396 IPC, it has equally failed to prove the offence under Section 120-B IPC.

A holistic appreciation of the evidence reveals that the prosecution has failed to firmly establish its case against all the four accused-appellants. Although the prosecution has revealed some pieces of evidence which may point to the guilt of the appellants, but the pieces of evidence are too few and too far between to establish their guilt. Instead of leaving the court on firm footing, the prosecution has left the court groping in the dark. Even after going through the complete evidence, there is a lurking doubt in the mind of this court with regard to the guilt of the appellants. Thus, this court has no other option, but to give the benefit of doubt to all the four appellants.

Therefore, for the reasons stated above, the appeal filed by Balraj @ Tiloo, namely D.B. Criminal Appeal No. 844/08, filed by Vijay Singh @ Sunder, namely D.B. Cr. Appeal No. 606/10 and the appeal filed by Manjeet Kumar @ Billu and Manoj Kumar, namely D.B. Cr. Appeal No. 923/08 are accepted. The appellants are acquitted of the charges framed against them. Since they are languishing in the Jail, they shall be set at liberty forthwith if they are not wanted in any other case.

Keeping, however, in view the provisions of Section 437-A Cr.P.C. the appellants, namely Balraj @ Tiloo, Vijay Singh @ Sunder, Manjeet Kumar @ Billu and Manoj Kumar, are directed to forthwith furnish a personal bond each in the sum of Rs. 20,000/- and a surety bond in the like amount each, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.