Nisha Gupta, J.
1. Since both the appeals arise out of the one judgment of the trial court, they are being decided by this common judgment.
2. Both the appeals have been preferred against the judgment dated 13/09/2007 rendered by Additional Sessions Judge Rajgarh, District Alwar in Sessions Case No. 38/2006 whereby, accused-appellant-Smt. Saroj was convicted for offence u/S. 302/120B IPC and the accused-appellant-Mahesh Sharma @ Mahesh Chand Sharma was convicted for offences u/Ss.302, 302/120B & 201 IPC and both of them were sentenced, as under :-
for offence under Section 302/120B IPC:-
Life Imprisonment and to pay a fine of Rs.5,000/- and in default thereof to undergo rigorous imprisonment for three months.
Mahesh Sharma @ Mahesh Chand Sharma:-
for offence u/S. 302 IPC:- Life Imprisonment and to pay a fine of Rs.5,000/- and in default thereof to undergo rigorous imprisonment for three months.
for offence under Section 302/120B IPC:- Life Imprisonment and to pay a fine of Rs.5,000/- and in default thereof to undergo rigorous imprisonment for three months.
for offence u/S. 201 IPC:- Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- and in default thereof to undergo rigorous imprisonment for one month.
3. The facts giving rise to both the appeals in brief are that Ram Charan (PW4) lodged a written report (Ex.P.4) at Police Station Tehla, District Alwar on 19/02/1997 with the contention that today, he was at his residence and at 11.00 a.m., the women, who were bringing the woods told that on the way going towards Kuchya village, one man is lying dead and he was profusely bleeding from his head. The neck was chopped off. Then, he Sharwan, Kishoriya, Kishanya, Ramjeevan, Baksya and Kanya all went to the way to Kuchya village and saw that a man was lying dead there. His neck was chopped-off. He was having two-three injuries on his head. Near the body, blood smeared socks were lying. He was killed by someone. The blood was scattered around the corpse and who was that person, no one knew. On this written report (Ex.P4), first information report bearing FIR No. 36/1997 (Ex.P5) was registered at Police Station Tehla, District Alwar for offence u/S. 302 IPC. The police tried to locate the accused persons but nobody could be connected with the crime and negative final report Ex.P29 was submitted in absence of the accused person. Thereafter, FIR No. 86/2006 was lodged at Police Station Samod, Jaipur for offence u/S. 307 IPC in which, Mahesh Sharma @ Mahesh Chand Sharma was arrested and interrogated and during interrogation, he admitted the fact that he killed Amit Choudhary in the forest of Dhaulan. Appellant was arrested in the present matter also. Appellant-Mahesh Sharma @ Mahesh Chand Sharma also informed the police that he was having illicit relations with Saroj, wife of the deceased and both of them conspired and killed Amit Choudhary. On the information of appellant-Mahesh Sharma @ Mahesh Chand Sharma, appellant-Saroj was also arrested. Recovery of funner and pipe was made from appellant-Mahesh Sharma @ Mahesh Chand Sharma. He also identified the place of occurrence. Prior to written report Ex.R4, missing report Ex.D.1 w
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as also lodged by Roopa Ram (PW10), brother of Amit Choudhary on 19.02.1997 stating that his brother Amit Choudhary is missing. After completion of investigation, police filed charge-sheet against appellants for offence u/Ss. 302, 201 & 120B IPC and they were put to trial, which was entrusted to the Court of Additional Sessions Judge Rajgarh, District Alwar.
4. After committal, charges were framed against accused- appellants for offences u/Ss. 302, 302/201 and 302/120B IPC, which were read over to them but they denied charges and claimed trial.
5. To support the case, the prosecution examined twenty one witnesses as PW1 to PW21 and exhibited thirty documents as Ex.R1 to Ex.P. 30, whereas accused were examined u/S. 313 Cr.P.C. and defence exhibited one document as Ex.D.1.
6. After conclusion of the trial, the accused appellants were convicted and sentenced for the aforesaid offences in the manner stated herein above.
7. Contention of the learned counsel for the appellant- Mahesh Sharma @ Mahesh Chand Sharma is that he has been implicated falsely only on conjectures and surmises. There is no circumstantial evidence to last seen or motive to connect him with the crime. Even dead-body was not identified as of Amit Choudhary. Evidence of pointing out the place of incident is inadmissible as the place was already known to the police and dead-body was recovered and a detailed site plan was prepared on 19.02.1997. Recoveries are fabricated ones. There was no reason for the appellant to keep the pipe and funner since 1997. Case has been reopened without any basis in 2006. Confession made by the appellant in police custody is completely inadmissible and is hit by Sections 25 and 26 of the Indian Evidence Act, 1872 and appellant has been implicated falsely. Hence, he be acquitted.
8. Contention of the learned counsel for appellant-Smt. Saroj Devi is that there is no convincing reliable evidence against appellant to connect her with the crime. Whole prosecution case against appellant-Smt. Saroj Devi hinges on the statement of co-accused Mahesh Sharma @ Mahesh Chand Sharma, which was given in police custody and carries no weight. There is no direct evidence to connect the appellant with the crime. After nine years of the death of her husband, the case has been reopened. Prosecution has failed to establish the criminal conspiracy. There is no evidence to suggest that both the appellants were having illicit relations. Hence, she be acquitted.
9. Per contra, the contention of the learned Public Prosecutor is that during the investigation of FIR No. 86/2006, the investigating officer reached to the conclusion that Mahesh Sharma @ Mahesh Chand Sharma committed the murder of Amit Choudhary with the aid of Smt. Saroj Devi. Recoveries were made from appellant- Mahesh Sharma @ Mahesh Chand Sharma. Relatives of Amit Choudhary identified his articles and photo of Amit Choudhary and categorically stated that both the appellants were having illicit relations hence, conviction has rightly been recorded by the trial court and no interference is needed.
10. Heard learned counsel for the appellants, learned Public prosecutor for the State and perused the impugned-judgment as well as the original records of the case.
11. Ram Charan (PW4) lodged the written report (Ex.P4) about the fact that a dead-body was found in the forest of Dhaulan. At that time, inquest report, site plan etc. were prepared. Dhanna Lal (PW5) also testified the fact and he witnessed the inquest report Ex.P7.
12. Sher Singh (PW6) brother of the deceased stated that since 18.02.1997, his brother Amit Choudhary was missing and they got information on 20.02.1997 and on 26.02.1997, they lodged the missing report at police station vide Ex.D.1. He also testified the same fact that Mahesh Sharma @ Mahesh Chand Sharma and Smt. Saroj Devi were having illicit relations but in cross-examination, he admits the fact that Mahesh Sharma @ Mahesh Chand Sharma used to visit the house of Amit Choudhary. He was having suspicion about the relations of both but he has no personal knowledge for the same. Sanwar Choudhary (PW7) is another brother of the deceased, who also deposed the fact that Amit Choudhary was missing since 17.02.1997 and Mahesh Sharma @ Mahesh Chand Sharma used to visit the house. He further stated that he identified photo of the deceased and also the belt, underwear and sweater of the deceased and the police prepared the document Ex.R 14 and his contention is that he identified his brother from photo and articles, which were shown to him.
13. Ummedilal Meena (PW12) is Tehsildar, who deposed that Sanwarmal and Roopa Ram identified the articles of deceased before him, which were belt, underwear, sweater and socks and he prepared the identification memo (Ex.R 14) and photo (Ex.R 15), which were shown to him. He further deposed that Saroj also identified the photo of the deceased.
14. Counsel for the appellants have rightly contended that Ex. P. 14 has no evidentiary value as there is nothing on record to suggest that belt, underwear, sweater and socks are of deceased Amit Choudhary and attention has been drawn towards the missing report (Ex.D.1) lodged by Roopa Ram (PW10) on 26.02.1997, wherein it was narrated that the deceased was wearing coat and pants of green colour, black socks and black shoes. Admittedly, these articles were not shown to Roopa Ram or Sanwarmal by Ummedilal Meena (PW12). Per contra, the sweater was identified by these witnesses, which shows hollowness of the prosecution case. Furthermore, copy of the malkhana register (Ex.P.22) revels that the socks, which were shown to the witnesses were of gray colour, whereas in Ex.D.1, specific narration is that the deceased was wearing black socks hence, identification of dead-body by the articles given in Ex.P.14 is doubtful and identification by photo (Ex.P15) by Saroj is of no consequence as she was in custody and identification in custody cannot be said to be admissible in evidence. Ex.P.14 does not inspire confidence. Counsel for the appellants have placed reliance upon the judgments of Apex Court in Ashish Batham v. State of M.P. : (2002) 7 SCC 317 and Balkar Singh v. State of U.P. : 1990 Cri.L.J. 77, where recoveries and identifications were not found worthy of credence. Here in the present case also, as pointed out earlier, Ex.R 14 seems to be a designed document just to create an evidence that it was the dead-body of Amit Choudhary only.
15. Bhanwarlal (PW9), who is uncle of the deceased has stated that Mahesh Sharma @ Mahesh Chand Sharma and Smt. Saroj Devi were having intimate relations but at the same time, he admits the fact that Amit Choudhary and Smt. Saroj Devi contracted love marriage 18 years back and since Amit Choudhary and Saroj were not having any relations with them from last 18 years hence, he is not having any direct knowledge about the intimacy of Mahesh and Saroj. Roopa Ram (PW10) is brother of the deceased. He identified the articles of deceased but as stated earlier, articles which were shown to him vide Ex.P 14, have no connection with the deceased as they were not described in Ex.D.1 and different clothes, coat, pants and black socks were narrated in Ex.D.1. Hence, Ex.P.14 seems to be a designed evidence just to show that it was only Amit Choudhary, who died on 19.02.1997 and whose dead-body was found by Ram Charan (PW4).
16. Dr. Vinod Kumar (PW17) conducted the autopsy of the unknown person and he found following injuries on that person:-
"1. Lacerated wound 3x1x1cm with depressed crushed skull oval shape 6x5cm over right front parietal region of scalp with clotted blood and blood stained matted hairs, on opening them, multiple pieces fractured right frontal and parietal bones with blood stained brain matter oozing.
2. Incised wound 4x1x2cm obliquely extending from right frontal upto left parietal region of scalp with clotted blood and blood stained matted hairs having clean edges, on opening multiple pieces of fractures right frontal and left parietal bones of scalp with blood stained brain matter oozing.
3. Incised wound oval shape 6x2x2cm over scalp extending from left frontal region 1cm above left eye brow towards right parietal region with clotted blood and blood stained matted hairs, having clear edges in margins of wound, on opening multiple fractured bone pieces of left frontal and right parietal bones of skull with blood stained brain matter oozing.
4. Incised wound vertically 1 x x cm over occipital region and scalp with clotted blood and blood smeared matted hairs, on opening no fracture of occipital bone seen.
5. Incised wound 4x1 x cm horizontally over lower part of neck at the level of 2nd tracheal ring, extending from left to right sternomastoid muscles cutting all muscles deep fascia and large vessels & trachea, and no blood was found clotted and at the doorsteps of the wounds, there was no blood.
6. Abrasion 1.5 cm x 1 cm over left forearm lower half anteriorly, on opening skin, the blood was found oozing.
7. Abrasion 1x1 cm over the right forearm lower half anteriorly, on opening skin, the blood was not found oozing.
And cause of death as per post-mortem report Ex.P.23 was crushing of brain due to multiple injuries over skull leading to death but no identification is found on the dead-body as per post-mortem report Ex.P.23. Hence, prosecution even could not prove that it was Amit Choudhary, whose dead-body was found by Ram Charan (PW4).
17. Be that as it may, accepting the case that it was Amit Choudhary, whose dead-body was found vide Ex.P 14, there is no admissible evidence against the appellants to connect them with the crime.
18. As regards the appellant-Smt. Saroj Devi, nothing has been recovered from her possession. There is no evidence of last seen. It has been brought by the prosecution and stressed upon that she was having illicit relations with Mahesh Sharma but none of the prosecution witnesses has stated so. Amit Choudhary was found missing and missing report (Ex.D.1) was lodged and Saroj Devi has been implicated only on the strength of confessional statement of co-accused Mahesh Sharma, which is clearly inadmissible and reliance has been placed on the judgment of Apex Court in Bheru Singh S/o Kalyan Singh v. State of Rajasthan : (1994) 2 SCC 467, wherein the Apex Court in para 16 thereof held, as under :-
"16. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 Cr.P.C. a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial.
Further reliance has been placed on the judgment of the Apex Court in , wherein in para 7, the Hon'ble Supreme Court held, as under:-
"(7) Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions i.e. of statements made by a person stating or suggesting that he has committed a crime. By Section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By Section 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in Section 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Narayan Swami v. Emperor, 66 Ind App 66; (AIR 1989 PC 47) (sic), by the Judicial Committee of the Privy Council, "S.25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation." The adjectival clause "accused of any offence" is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against a person accused of any offence". By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas Section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, Section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states "Provided 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." The expression, "accused of any offence" in Section 27, as in Section 25, is also descriptive of the person concerned, i.e., against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety".
Further reliance has been placed on the judgment of the Hon'ble Apex Court in Vikram Singh & Ors. v. State of Punjab : JT 2010 (1) SC 568 in para 12 of which, Supreme Court held, as under :-
"12. We see that Section 46 deals with 'Arrest how made'. We are of the opinion that word "arrest" used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put under formal arrest on the 15th February 2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14th February 2005. Moreover in the light of the judgment in the Constitution Bench and the observation that the words in Section 27 "accused of any offence" are descriptive of the person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. This argument does not merit any further discussion."
19. Hence, in the light of above, it is explicitly clear that confessional statement made by Mahesh Sharma @ Mahesh Chand Sharma cannot be read as an admissible evidence to record conviction qua appellant-Smt. Saroj Devi and admittedly, there is no other evidence to connect the appellant with the crime.
20. The prosecution has come with the case that recoveries were made from appellant-Mahesh Sharma @ Mahesh Chand Sharma,. Ram Singh Meena (PW20), the investigating officer stated that confession was made by appellant-Mahesh Sharma @ Mahesh Chand Sharma in FIR No. 86/2006 wherein he was arrested and he suffered the disclosure statement Ex.P.25 In this regard and, thereafter, place of occurrence was identified by him and he prepared the memo Ex.P.30. Admittedly, Ram Charan (PW4) saw the dead-body and reported the matter to the police vide Ex.P.4 on 19.02.1997. Thereafter, the police went to the place of occurrence and prepared the site-plan Ex.P.6 and inquest report Ex.P.7. Hence, furnishing information again about the same place, is not admissible in law and reliance has been placed on the judgment of Supreme Court in Vijender etc. v. State of Delhi : 1997 (1) Crimes 158 (SC) and State of Haryana v. Jagbir Singh and Anr. : JT 2003 (Suppl.2) SC 393, where the Hon'ble Supreme held that when dead-body was recovered on the information known to the police, Section 27 of the Evidence Act will not be attracted. Here in the present case also, the place where the dead-body was in the knowledge of the police since 199 hence, discovery of the same at the instance of the appellants is not admissible and cannot attract Section 27 of the Evidence Act. Hence, this piece of evidence cannot be used to connect the appellants with the crime.
21. The other evidence, which has been brought against appellant-Mahesh Sharma is that he suffered disclosure as regards to recovery of pipe and funner, which was reduced in writing vide Ex.P.25 an Ex.P.27. Admittedly, Ex.R26 and Ex.R27 i.e. the disclosure statements furnished by appellant-Mahesh Sharma were not recorded in the presence any independent witness. Hence, no reliance can be placed on the recovery. Counsel for the appellants has placed reliance upon the judgment of the Hon'ble Supreme Court in Harjit Singh & Ors. v. State of Punjab : AIR 2002 SC 3040, wherein it has been held by their Lordships that disclosure statement should be signed by an independent person and investigating officer should not associate any eye-witness with the recovery memos. In the present case also, no witness what to say of any independent-witness was associated at the time when disclosure statements were made. It is necessary for the prosecution to prove that the disclosure statements were made voluntarily without any duress or coercion. To justify voluntary character of disclosure statements, it ought to be recorded in the presence of an independent-witness. It is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act, which says that nothing stated to the police is admissible in evidence. Since Section 27 of the Indian Evidence Act can/es out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that the same was not fabricated; therefore, it is necessary that it should have been made in presence of an independent-witness. It was further held by the Apex Court para 49 of the said judgment, as under:-
"49. In the absence of independent witnesses and the alleged place of concealment being accessible to public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied by the (sic) court to convict the accused by treating it as eye-witnesses account."
A Division bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was Member in Rameshwar and Jinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No. 158/2010 decided on 10.11.2014, has observed, as under :-
"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex.P/22 is recorded on 31st July, 2006 at 11 PM. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. v. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntarily without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carves out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."
Admittedly, the disclosure statements were not made in the presence of any independent-witness and hence in view of the judgment of the Apex Court in Harjit Singh and of this Court in Rameshwar and Dinesh @ Pillu supra, recovery is doubtful. Hence, contention of the counsel for the appellants is right that only on the basis of recovery, appellants cannot be connected with the crime.
22. Ram Singh Meena (PW 20), the investigating officer deposed that in pursuance of the information, funner and pipe were recovered at the instance : of appellant-Mahesh Sharma vide Ex.P.17 and Ex.P.20. Contention of the learned counsel for the appellants is that both the recoveries were made from an open place accessible to all and hence, appellants cannot be connected with the crime and reliance has been placed on the judgments of Apex Court in Aslam Parvez etc. v. Govt, of NCT of Delhi : 2003 (1) Supreme (Cr.) 700 and Krishan Mohar Singh Dugal etc. v. State of Goa : 1999(2) Supreme (Cr.) 428, where the Apex Court held that where recovery is made from an open place, it is difficult to uphold the finding of the trial court that it was the appellant, who has concealed the things. Hence, recovery from an open place cannot inspire confidence. Apart from it, it is very strange that in 4 1997 that Amit Choudhary was murdered as per the prosecution story and recovery of funner and pipe was made in May, 2006. There was no occasion for appellant-Mahesh Sharma to keep the articles for an about 9-10 years and recovery in itself seems to be concocted one and otherwise, the law is well settled that only on the mere recovery of the articles, appellants cannot be connected with the crime. Reliance in this connection has been placed upon the judgment of Hon'ble Apex Court in Mani v. State of Tamil Nadu : AIR 2008 SC 1021. Further reliance has been placed upon the judgment of Hon'ble Apex Court in Babboo and Others v. The State of Madhya Pradesh : AIR 1979 SC 1042, where the same principles have been reiterated by the Apex Court. Hence, recovery of these articles cannot in any way connect the appellants with the crime.
23. Hence, in the totality of the circumstances, it can be concluded that prosecution has utterly failed to prove any individual circumstance against appellant-Smt. Saroj Devi and as discussed earlier, there is no legal and admissible evidence to connect her with the crime. She has been implicated only on the confessional made by co-accused-Mahesh Sharma @ Mahesh Chand Sharma, whose evidence cannot be termed as legal and admissible evidence. Appellant-Mahesh Sharma @ Mahesh Chand Sharma has been implicated only on the basis of the confessional statement made by him, which is hit by Sections 25 and 26 of the Indian Evidence act, 1872. The recoveries were made from an open place accessible to all and that too after nine years of the incident and it cannot inspire any confidence. Furthermore, prosecution has completely failed to prove the fact that it was Amit Choudhary, whose dead-body was found by Ram Charan (PW4). The whole case of the prosecution is doubtful one. Reliance can be placed upon the judgment of the Hon'ble Supreme Court in Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343] and another judgment of the Supreme Court recently passed in the case of, wherein Hon'ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence, as under:-
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, 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. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent 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."
24. Hence, in conclusion, the prosecution has failed to prove the chain of circumstance against the appellants, which could lead to the conclusion of guilt against them.
25. A critical and holistic analysis of the evidence clearly reveals that the prosecution has failed to travel the distance between "may be true" and "must be true". Although the prosecution has produced certain evidence, but there are too may pieces of the jigsaw puzzle, which are conspicuously missing. The evidence is neither cogent nor convincing for upholding the conviction of the appellants for the alleged crime. Therefore, we grant benefit of doubt to the appellants.
26. In view of above, both the appeals are allowed. The impugned-judgment dated 13.09.2007 rendered by Additional Sessions Judge Rajgarh, District Alwar in Sessions Case No. 38/2006 is set-aside. The accused-appellants Smt. Saroj Devi W/o late Shri Amit Choudhary and Mahesh Sharma @ Mahesh Chand Sharma S/o Shri Prabhu Dayal are acquitted of the charge for offence u/S. 302/120B IPC and Sections 302, 302/120B & 201 IPC, respectively. They be released forthwith, if not required in any other case. However, in case, they are on bail, they need not surrender and their bail bonds shall be discharged subject to compliance of Section 437A Cr.P.C. The records be sent back to the trial court forthwith.
Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, accused-appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- (Rupees Twenty Thousand) each and a surety bond of the like amount, before the 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 this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.