M.C. Jain, J.
1. The Sessions Judge, Pratapgarh, by his judgment dated 24-8-1974 convicted the appellants of the offence Under Section 302, I.P.C. and sentenced to each of them to imprisonment for life for having murdered one young Lad by name Aziz son of Kalekhan, who was found missing from the evening of 30-11-1973
2. The prosecution case, in brief, is that Nirbhay Singh (PW 13) happened to go towards the temple on the hillock and found the dead body lying prostrate. He reported the matter to his father-in-law Deepsingh (PW 12) Deepsingh in turn informed Kalekhan that a dead body is lying inside the dilapidated temple, so he may go and find out whether it is of his son. There upon Kalekhan (PW 3) went to the temple and found that the dead body is of his son Aziz. He came back to his village Vinota and raised shrieks and told the villagers about the dead body of his son. Thereupon the villagers went to the temple. The matter was also brought to the notice of the Sarpanch Sagarmal (PW 10). Thereupon Sagarmal asked the villagers to inform the Police Hazarimal (PW 1) went to the Police Station, Nimbahera and lodged the written report Ex. P. 1. Thereupon case Under Section 302, IPC, was registered and a formal first information report (Fx. P/11) was drawn by the S.H.O. Bhupendra Singh (PW 14). Bhupendra Singh commenced the investigation. He visited the spot, prepared the site plan (Ex P/3) and site notes (Ex P/2), Panchnama Lash (Ex. P/4) and sent the dead body for post mortem examination and seized the blood stained clothes of the deceased vide memo Ex. P/6. On 4-12-1973 both the accused persons were arrested vide memos Ex. P 9 and Ex. P 10. On the information of the accused Faiyaz (Ex. P 12) his blood stained shirt, pant and pair of shoes were recovered vide recovery memo Ex. P 5. All these blood stained articles were packed and sealed. On the information of the accused Salam (Ex. P 3) blood stained knife was recovered vide memo Ex. P 7. Knife was also packed and sealed. All these articles were sent for chemical examination and on chemical and Serological examinations it was found that all these articles were stained with human blood. Investigation was conducted from the witnesses. After completion of the investigation, charge-sheet was present against the appellants and the appellants were committed for trial by the Munsif and Judicial Magistrate, Nimbahera, to the court of Sessions Judge, Pratapgarh. The Sessions Judge charged the accused with the offence Under Section 302, IPC, as well as Under Section 302/34 IPC. The accused persons, however, pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution examined in all 15 witnesses. In their statements, the accused persons denied the entire prosecution case and led no evidence in defence. The learned Sessions Judge, on the basis of certain circumstances, which have been found to be proved, convicted and sentenced the accused persons, as aforesaid. The learned Sessions Judge held that the following circumstances are proved against the accused persons:
(1) The accused having been seen last with the deceased as stated by Jamila and proceeding towards the dilapidated temple
(2) Jamila is corroborated by PW 9 Bhanwari
(3) Discovery of the weapon with which the offence was committed; in consequence of the information supplied by the accused;
(4) Recovery of the blood stained clothes of Faiyaz immediately after the preparation of memo of dead body of deceased;
(5) The recovery of shoe the like of which appeared on the way near the temple and compared by investigating officer Shri Bhupendra Singh;
and while dealing with the evidence, this circumstance was also found proved that the accused Faiyaz had asked PW 7 Goga and PW 8 Bheru Singh that they may render assistance to him in beating Aziz Khan. The evidence of both these witnesses has been relied upon by the learned Sessions Judge. On the basis of the aforesaid circumstances, verdict of conviction was recorded by the learned Sessions Judge. Dissatisfied with the convictions and sentences, both the accused persons have preferred this separate appeal.
3. We have heard Shri Doongar Singh, learned Counsel for the appellants and Shri Niyazuddin Khan, learned Public Prosecutor, for the State.
4. There is no direct evidence in this case connecting the accused persons with the crime and the entire case is, based on the circumstantial evidence. Out of the circumstances, which have been relied upon by the learned Sessions Judge, the most material circumstances are the recoveries of blood stained clothes on the information and at the instance of the accused Faiyaz and blood stained knife on the information and at the instance of the accused Salam. In respect of these recoveries Mr. Doongar Singh, learned Counsel for the appellants, submitted that the evidence relating to recoveries is absolutely unreliable and there are serious infirmities in the prosecution evidence relating to the aforesaid recoveries. He pointed out that according to she investigating officer, the accused persons were arrested at village Vinota on 4-12-1973 and the accused persons gave informations at the Seed House soon after their arrest and recoveries of blood stained clothes at the instance of the accused Faiyaz in pursurance of his information, was first effected and thereafter the recovery of knife was effected. As against this Shamsuddin (PW 4) has stated that the knife was first recovered and thereafter recoveries of the clothes were made. Shamsuddin and Sitaram are the witnesses of the recoveries of clothes. Sitaram has stated that he remained outside the house of the accused Faiyaz and he cannot say from where the accused brought the clothes from inside the house. The statement of Sitaram is of no held to the prosecution. Shamsuddin has also stated that the Head Constable and went inside the house and brought the clothes from inside and he was standing at the door of the house. According to Shamsuddin the She recovery was effected at about 9.00 a.m., on 3.12.1973. Mr Doongar Singh also made reference to the statement of Bardichand (PW 11), who is the Motbir of the recovery of knife. He has deposed that he had visited the place where the dead body was found only twice. First he went to that place along with the villagers and second time when the police had arrived and the knife was recovered at the time when the police had arrived, which shows that the recovery was effected on 3.12.1973. Thus, the correctness of the statement of Bhupendra Singh with regard to the recoveries, became highly doubtful in as much as according to him the recoveries ware effected on 4.12.73 whereas, according to the Motbir witnesses the recoveries were effected on 3.12.1973. As regard the recovery of knife, Mr. Doongar Singh urged that the recovery of knife at the instance of the accused Salam is highly doubtful in view of the statements of Hazari Mal and Shamsuddin, who were also present at the time of the recovery of knife. Although Badri Singh (PW 5) and Bardichand (PW 1) are the Motbirs of the recovery of knife, but these witnesses admit the presence of Shamsuddin at the time of recovery and Shamsuddin's version is that both the accused persons and the Police went in search of the knife and after some time they brought the knife, which was in the hands of the Police personnal and the statement of Hazarimal (PW 1) is to the effect that a search in respect of knife was made and it was not traced, but then Badri Singh got it from the nearby bushes If the evidence of recoveries is viewed in the light of PW 1 Hazrimal and Shamsuddin (PW 5), then it cannot be found that the knife was got recovered by the accused Salam and besides that even with regard to the recovery of knife, this discrepancy is already there whether it was effected on 3. 2.1973 or 4.12.1973. According to Badrichand's statement, as already stated, it was recovered on 3.12. 973
5. Mr. Doongar Singh further pointed out that no reliance can be placed on the evidence of recoveries in view of the fact that there is absolutely no evidence on record to prove that the sealed packets of the recovered articles were not tampered with. Neither Bhupendra Singh has referred in his statement to this aspect of the case, nor any other witness has been examined. It would appear from the letter of the S.P. that the sealed packets were taken from the Police Station, Nimbahera to the office of the S.P. Chit-toregarh, by Harnath Singh and from the S.P. Office these packets were carried by the Foot Constable Ramlal to the Forensic Science Laboratory, Jaipur, but these witnesses have not been examined The question becomes all the more material in view of the fact that the report of the Chemical Examiner reveals that one Dhoti was also found as one of the contents in packet marked 'A', which related to the clothes of the deceased. This Dhoti was also found stained with human blood after chemical and serological examinations. The Panchnama Lash (Ex. P/4) and the seizure memo of blood stained clothes of the deceased Ex P/6 do not show that any blood stained Dhoti of the decased was seized. In the letter of the S.P., sent to the Chemical Exa-miner (Ex P/15) as well there is no mention of Dhoti in packet marked 'A'. How this Dhoti was found in packet 'A' is somewhat mysterious and according to Mr. Doongar Singh this only shows that the packets have been tempered with and so in the light of this suspicious circumstances, it was all the more necessary for the prosecution to have led evidence to the effect that the seals on the sealed packets remained in tact and were not tampered with till they reached to the hands of the Chemical Examner. On the basis of the above submissions Mr. Doongar Singh urged that the circumstance of the recoveries on the information and at the instance of the accused Faiyaz and the recovery of the blood stained knife on the information and at the instance of the accused Salma, should not be found as proved and these circumstances cannot be said to be available to the prosecution.
6. We find considerable force and substance in the above submissions of Mr. Doonger Singh. Apart from the discrepancies relating to the evidence of recovery, as contended by Doonger Singh, it is note worthy that the prosecution has not led any evidence on the point that after sealing of the packets of the articles recovered their seals remained intact and were not tampered with. When the signatures of the witnesses were obtained on the chits, which were affixed on the sealed packets, those signatures on the Chits have also been not got proved by the witnesses and as pointed out by Shri Doonger Singh, the circumstances of extra clothes in the form of Dhoti in packet 'A' relating to the clothes of the deceased, casts a suspicion as to how the sealed packets were actually dealt with. That apart, this court has been consistently taking this view that it is the duty of the prosecution to lead complete evidence on the point that the seals of the sealed packets remained infact and not tampered with. In the absence of such evidence in the present case the circumstance of recoveries at the instance of both the accused persors, can be of no avail to the prosecution If the recoveries, cannot be pressed into service, then the other circumstances, which have been found incriminating against the appellants, are not of such a character that on the basis of which the accused persons can be connected with the crime. The other circumstances, on which reliance has been placed are that the deceased was last seen in the company of the accused persons by the sister of the deceased Jamila (PW 2), aged 12 years According to her, she saw brother Aziz, while she was grazing goats sitting on the hillock. She had asked her brother to trace out one missing goat, but he did not come to her help and she informed her father, when her brother did not return to the house that she saw her brother in the company of Faiyaz and Salam, while they were proceeding towards Badi Sadri.
7. The other circumstance, which has been relied upon, is that after having been seen by Jamila, thereafter Mst. Bhanwari (PW 9) saw the deceased at the Hodi and there were two persons with him, whom she had seen from their back According to her, she asked Aziz as to who those persons were. Thereupon Aziz replied 'Jana Koi Hai'. From her statement it appears that Aziz did not reveal the names of those two persons and her further statement is that she had informed the wife of Kalekhan about Aziz being at the Hodi and there were two persons more with him. According to her the temple was about 1 1/2 furlongs from Hodi.
8. There is another circumstance, on which reliance has been placed by the prosecution that the accused Faiyaz made an attempt to seek assistance of Goga (PW 7) and Bheru Singh (PW 8) for the beating of Aziz, for which both these witnesses declined. The testimony of these witnesses has been assailed before us. It has not come in the evidence of Goga and Bheru Singh as to why Faiyaz was thinking of giving beating to Aziz. In the absence of any motive, the testimony of these witnesses should not be relied upon. As regards the other two witnesses, namely, Jamila and Bhanwari, it has been contended before us that the testimony of both these witnesses should not afro be relied upon in view of the feet that Aziz did not give out the names of the two persons to Bhanwari. If the two persons were known to Aziz, it was natural for him to have replied to Bhanwari that they are Faiyaz and Salam Jamila's statement,if viewed in the light of the statement of Bhanwari, does not appear to be true, when she states that the deceased was seen in the company of the accused persons. The statement of Bharwani, no doubt throws some doubt on the truthfulness of the version given by Jamila. But that apart, even if it is found that these circumstances have been established, still these circumstances are not of such a character on the basis of which the accused persons can be held guilty of the offence of murder of Aziz. Apart from the circumstance of the last seen, some curcumstance of the culmination of the incident inculpating or incriminatory in charcater of the accused persons, was essential, but the same is nissing in this case. As the circumstance of recoveries has already been found by us being not available, so, in cur opinion, offence Under Section 302, I.P.C is not established beyond all reasonable dobut against the appellants and the appaliants are entitled to the benefit of doubt.
9. In the result, both the appeals are allowed, the convictions and the sentences of the appellants in both the appeals, are set aside. They are already on bail. So they need not surrender to their bail bonds. Their bail bonis are discharged.