[2026:RJ-JP:1001-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR (1) D.B. Criminal Appeal No. 131/2021 Mangal Pandit @ Mangal Pandey Son Of Sri Sitaram Sharma, Aged About 30 Years, Resident Of Village Govindpura Ps Sanganer Sadar District Jaipur (Rajasthan) (Presently Lodged At Central Jail, Jaipur) ----Appellant Versus State Of Rajasthan, Through Public Prosecutor ----Respondent Connected With (2) D.B. Criminal Appeal No. 122/2021 Mahaveer Sharma S/o Sh. Goverdhan Lal Sharma, R/o Nagariyawala, Sector Police Station Pratap Nagar, Jaipur East (At Present Confined At Central Jail Jaipur) ----Appellant Versus State Of Rajasthan, Through PP. ----Respondent (3) D.B. Criminal Appeal No. 129/2021 Mahesh Kumar Meena Son Of Dayaram Meena, Aged About 28 Years, Resident Of Village Nangal Sherpur, Police Station Balghat, District Karauli (Rajasthan) (Presently Confined In Central Jail, Jaipur) ----Appellant Versus State Of Rajasthan, Through PP. ----Respondent (4) D.B. Criminal Appeal No. 130/2021 Ram Kishor @ R.K. S/o Late Ramkaran Meena, Aged About 32 Years, R/o Teeba Ki Dhani, Siroli, Police Station Shivdaspura, Jaipur South (At Present Accused Confined In Central Jail Jaipur) ----Appellant Versus State Of Rajasthan, Through P.P. [2026:RJ-JP:1001-DB] (2 of 52) [CRLAD-131/2021] ----Respondent (5) D.B. Criminal Appeal No. 146/2021 Prince Kumar Son Of Shri Kamalkishore Singh, Aged About 24 Years, Resident Of House No. E-96, Gharonda Scheme, Pratap Nagar, Sanganer, Jaipur (Rajasthan) (Presently Confined In Central Jail, Jaipur) ----Appellant Versus State Of Rajasthan, Through P.P ----Respondent (6) D.B. Criminal Appeal No. 163/2021 Rambabu Sharma S/o Shri Dhannalal Sharma, R/o Buxawala, Police Station Sanganer Sadar District Jaipur (Presently Confined In Central Jail, Jaipur) ----Appellant Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Appellant(s) : Mr. V.R. Bajwa, Sr. Adv. With Mr. Amar Kumar and Ms. Savita Nathawat Dr. Mithlesh Kumar Mr. Rajesh Goswami with Mr. Garvit Saraswat Mr. Jay Bhardwaj Mr. Adeet Srivastava and Mr. Mahesh Kumar Sharma Mr. Rajneesh Gupta with Mr. Rahul Sharma Ms. Chanchal and Mr. Utkarsh Goyal Mr. Deepak Chauhan with Mr. Harsh Joshi For Respondent(s) : Mr. Shree Ram Dhakar, Dy. GA with Mr. Vinod Sharma and Ms. Neha Goyal Mr. Swadeep Singh Hora with Mr. Tara Chand Sharma Mr. Abhimanyu Singh Mr. Kshitiz Singh and Mr. Sahajveer Baweja [2026:RJ-JP:1001-DB] (3 of 52) [CRLAD-131/2021] HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI Judgment Date of Conclusion of Arguments : : 09/01/2026 Judgement Reserved On : : 09/01/2026 Whether the full judgement or only the operative part is pronounced Full Order Judgement Pronounced On : : 16/ 01/2026 PER HON’BLE MAHENDAR KUMAR GOYAL, J. Since, all these criminal appeals are directed against the common judgement dated 07.09.2021 passed by the learned Additional Sessions Judge No.10, Jaipur Metropolitan-I, (Headquarters Sanganer) (for short-`the trial court’) in Sessions Case No.21/2017 (CIS No.81/2020), the same have been heard together and are being disposed of vide this common judgement. The accused-appellants- Rambabu Sharma, Prince Kumar Singh, Mahesh Kumar Meena, Mahaveer Sharma and Ram kishor @ R.K. (for short-`the appellants) have been convicted and sentenced, vide impugned judgement, as under: Section 302 IPC: Life imprisonment and fine of Rs.25,000/-; in default whereof, two months additional rigorous imprisonment. Section 120B IPC: Life imprisonment and fine of Rs.25,000/-; in default whereof, two months additional rigorous imprisonment. Sentences to run concurrently. The accused-appellant-Mangal Pandit @ Mangal Pandey has been convicted and sentenced as under: [2026:RJ-JP:1001-DB] (4 of 52) [CRLAD-131/2021] Section 302 IPC: Life imprisonment and fine of Rs.25,000/-; in default whereof, two months additional rigorous imprisonment. Section 120B IPC: Life imprisonment and fine of Rs.25,000/-; in default whereof, two months additional rigorous imprisonment. Section 3/25 of Arms Act: Three years rigorous imprisonment and fine of Rs.5,000/-; in default whereof, one month additional simple imprisonment. Sentences to run concurrently. The relevant facts in brief are that the complainant Shri Ramesh (PW23) submitted a written report dated 28.02.2017 (Ex.P55) with the Police Station Sanganer Sadar, Jaipur stating therein that his brother Madan Gopal Mogra had gone today to Asawala Village to attend the marriage of grand-daughter of ‘Mamaji’ (maternal uncle) and while returning back, he was murdered and his body was thrown on main road near Bakshawala JDA Scheme. It was further stated that about a month and quarter ago, Gopal S/o Ram Sahai Prajapat and Rambabu S/o Dhanna Lal have threatened him of his murder on account of an altercation. It was alleged that either they or somebody else has murdered him. Based thereupon, an FIR No.86/2017 (Ex.P54) was registered under Section 302 IPC against the unknown person. During the course of investigation, the appellants were arrested and after investigation, they were charge-sheeted under Sections 302 and 120B IPC along with co-accused Kapil Parashar and the appellant Mangal Pandit @ Mangal Pandey was charge-sheeted under Section 3/25 of the Arms Act, 1959 as well. Charges under the [2026:RJ-JP:1001-DB] (5 of 52) [CRLAD-131/2021] aforesaid Sections were framed against them by the learned trial court. The appellants as well as co-accused Kapil Parashar pleaded not guilty and demanded trial. After trial, while, Kapil Parashar has been acquitted of the charges framed against him, the appellants have been convicted and sentenced in the manner stated hereinabove. Assailing the impugned judgement, the learned senior counsel for the appellant-Rambabu and the learned counsels for the other appellants submitted that findings of the learned trial court are based on conjectures and surmises and their conviction has been recorded in absence of any legally admissible evidence against them. Learned counsels, inviting attention of the Court towards the cross-examination of Shri Dharamveer Singh (PW32)- the Investigating Officer, would submit that therein, he has admitted that prior to the submission of the written report (Ex.P55), a telephonic message was received from PCR 108 Control Room at about 12.40 pm, as recorded in rapat (report) no.1930 dated 28.02.2017 that an accident has occurred on Shikarpura Road JDA Quarters Bakshawala and a person was lying there and to give the aforesaid accident the colour of murder, they have falsely been implicated. They further submitted that the theory of death of Madan Gopal Mogra on account of the road accident gets strengthened from the site plan (Ex.P76), which reflects not only the pieces of the broken helmet of the deceased near the place of incident; but also, lying of the motor cycle, belonging to the deceased, in the dirty rivulet (nala) at a distance of about 35 meters from the place of incident and its seizure [2026:RJ-JP:1001-DB] (6 of 52) [CRLAD-131/2021] memo (Ex.P74) also reflects that the motor cycle was recovered from the rivulet but the prosecution did not offer any explanation as to how the helmet was broken or the motorcycle reached there; rather, it has been its case that all the accused-appellants came in a Scorpio Car, blocked the motorcycle the deceased was riding, surrounded him so that he might not escape, hacked him to death at the spot and ran away. They contended that the prosecution has deliberately concealed the aforesaid rapat bearing no.1930 so as to suppress the true genesis of the case. They asserted that from the testimony of the so-called eye witnesses namely; S/Shri Govind Narayan (PW2), Ram Avtar Sharma (PW19), Shrawan (PW20) and Narayan Lal (PW21), it is apparent that they have not witnessed the incident and are planted witnesses. Elaborating their submission, learned counsels further submitted that although, all the aforesaid eye witnesses have tried to conceal their relationship with the deceased; but, from the material on record, it is apparent that they were closely related to him. They contended that it gains importance in view of the fact that although, all of them claimed to have witnessed the incident; but, none of them came either to rescue of the deceased or, escorted him to hospital. Further, they informed neither the family members of the deceased nor, the police rather, they have surfaced only on 08.03.2017, i.e., 8 days after the date of incident when their police statement was recorded. They also submitted that although, these eye witnesses have come into picture for the first time on 08.03.2017; but, many of the appellants were arrested before that; but, the prosecution could not place on [2026:RJ-JP:1001-DB] (7 of 52) [CRLAD-131/2021] record any evidence available with them to show their complicity at that time. Learned counsels contended that the learned trial court has returned the finding of their guilt based on the theory of conspiracy assuming that the appellant Rambabu had rancour against the deceased on account of their altercation having taken place about a month and quarter ago in the village and to eliminate him, he hatched it with co-accused which stood substantiated from their regular touch with each other on mobile before the incident. Learned counsels asserted that the prosecution has miserably failed to establish that the mobile phones allegedly used by them, either belonged to them or, as a matter of fact, were used by them or, that they had hatched the conspiracy of murder on the phone. They further submitted that they have also been connected with the alleged offence with the help of a Scorpio Car allegedly used in commission of the offence whereas, the prosecution could not establish that as to whom this Scorpio Car belonged as also that it was used in commission of offence. They contended that the recovery of weapons of offence, i.e., the axe and the pistol, allegedly at their instance, could neither be proved by the prosecution nor, that the same were used in commission of offence. Learned counsels asserted that since, the appellants were not suggested, while recording their plea under Section 313 Cr.P.C, incriminating evidence against them touching the vital aspects of the case, the same could not have been relied upon by the learned trial court to record their conviction. [2026:RJ-JP:1001-DB] (8 of 52) [CRLAD-131/2021] Learned counsel for the appellant Mangal Pandit @ Mangal Pandey, in addition, submitted that his conviction under Section 3/25 of the Arms Act, 1959 is bad in law inasmuch as the pistol is alleged to have been recovered on 10.03.2017; but, it was deposited in the malkhana on 09.03.2017, i.e., a day prior to its seizure. He further contended that even otherwise, in absence of a valid prosecution sanction, his conviction under the Act of 1959 is not sustainable. They, therefore, prayed for their acquittal of the charges framed against them. They, in support of their submissions, relied upon judgements of the Hon’ble Supreme Court of India in the cases of K.R. Purushottam vs. State of Kerala-AIR 2006 SC 35, Babubhai Bhimabhai Bokhiria & Anr. Vs. State of Gujarat & Ors.- (2014) 2 SCC (Cri.) 644, Muluwa Son of Binda & Ors. Vs. State of Madhya Pradesh; 1976 (1) SCC 37, Din Dayal Vs. Raj Kumar @ Raju & Ors.; AIR 1999 SC 536, Raju Naykar vs. State of Chattisgarh: (2024) 3 SCC 481, Rishi Nandan Pandit & Ors. vs. State of Bihar-2000 Cr.L.R. (SC) 52, Arvind Kumar Jain Vs. State of Rajasthan; 2015(2) RLW 1498 (Raj.), Ram Sharan Chaturvedi Vs. The State of Madhya Pradesh:2022 LiveLaw (SC) 709, Indrakunwar vs. The State of Chhattisgarh: 2023 INSC 934 and Mohd. Javed vs. State of Chattisgarh, Criminal Appeal No.1126/2014 dated 13.02.2018. Per contra, learned Public Prosecutor, assisted by Shri Swadeep Singh Hora-learned counsel for the complainant, supporting the findings recorded by the learned trial court, submitted that from the material available on record, it is [2026:RJ-JP:1001-DB] (9 of 52) [CRLAD-131/2021] established beyond reasonable doubt that appellants have, in conspiracy with each other, assaulted the deceased and murdered him by inflicting multiple injuries on his body which were sufficient in the ordinary course of nature to cause death. Shri Hora submitted that had it been a case of false implication, the written report dated 28.02.2017 (Ex.P55) itself would have contained appellants’ name and the cryptic manner in which it has been written, reflects its truthfulness. He contended that the ocular evidence as to infliction of injuries on the body of the deceased by the appellants with sharp edged weapon and gun fire, stands corroborated from the injuries found on the body of deceased in the autopsy report (Ex.P68). Learned counsel asserted that the accused Rambabu had a grudge against the deceased on account of previous enmity and to eliminate him, he hatched a conspiracy with co-accused and caused his death when he was found alone on the fateful day. He, therefore, prayed for dismissal of the appeals. He, in support of his submissions, relied upon the judgement of the Supreme Court in Laxmi Raj Shetty & Anr. vs. State of Tamil Nadu:(1988) 3 SCC 319. Heard. Considered. A perusal of the judgement impugned dated 07.09.2021 reflects that the learned trial court has relied upon the testimony of following four prosecution witnesses by treating them to be the eye witnesses of the incident namely; S/Shri Govind Narayan Sharma (PW2), Ram Avtar (PW19), Shrawan (PW20) and Narayan Lal (PW21). [2026:RJ-JP:1001-DB] (10 of 52) [CRLAD-131/2021] Testimony of Shri Govind Narayan (PW2) reflects that he has denied any relationship with the deceased Madan Gopal. He has feigned ignorance, when suggested during his cross-examination, that Hari Narayan-father of the deceased was son-in-law (Bhanji Janwai) of Shri Shrawan Lal-his maternal grandfather. Shri Ram Avtar (PW19) has denied the deceased to be his brother. However, in the same breath, he has stated that in ‘gotra’, he was brother. Shri Shrawan (PW20) has denied any relationship with the deceased. The remaining eye witness namely; Shri Narayan Lal (PW20) though, has admitted to have known the deceased Madan Lal Mogra since birth; but, did not disclose any relationship in between them. Thus, all the four eye witnesses barring the PW20, who did not disclose his relationship, have denied to be related to the deceased. However, from the evidence available on record, it is reflected that they were closely related to the deceased as also held by the learned trial court in para 122 of the impugned judgement wherein, it was observed that Shri Govind Narayan (PW2) was son of Mausi (sister of mother) of the deceased, Shri Ram Avtar (PW19) was Chachera Bhai (first cousin) of the deceased as is also evident from the testimony of PW23-Shri Ramesh-the informant and brother of the deceased, Shri Shrawan Lal (PW20) was brother in family and Shri Narayan Lal (PW21) was Bhanji Janwai of the deceased. Although, the learned trial court has held Shri Shrawan Lal (PW20) to be brother of the deceased in the family; but, the evidence on record suggests otherwise. As per the written report (Ex.P55), the deceased had gone to Village Asawala to attend marriage of daughter of their [2026:RJ-JP:1001-DB] (11 of 52) [CRLAD-131/2021] Mamaji. Shri Govind Narayan Sharma (PW2), who is son of Mausi of the deceased, has also stated that on the fateful date of 28.02.2017, he had gone to Asawala to visit his Mamaji Shrawan Lal and Sita Ramji and as per his cross-examination; he had gone to attend the marriage function. Since, the deceased as well as Govind Narayan Sharma are sons of two sisters, Shri Shrawan Lal happened to be Mama of both. Shri Shrawan Lal, as PW20, has stated during his cross-examination that there was marriage of his granddaughter and he, along with Shri Govind Narayan (PW2) had gone to buy “mawa” when they witnessed the incident. In view of the aforesaid evidence, it is evident that Shri Shrawan Lal was Mama of the deceased and not his brother as held by the learned trial court. Therefore, it is apparent that despite being closely related, they all have tried to conceal their relationship with the deceased and this factum is rendered of much significance in the factual backdrop of the case to be discussed hereunder. Though, all these witnesses have claimed to have witnessed the incident; but, their testimony reflects that none of them came to rescue of the deceased. Even assuming that since, the appellants were armed with weapons, it prevented them from interfering but, nothing stopped them from escorting the deceased to the hospital, or to inform the family of the deceased or, the police; but they did nothing and have surfaced only on 08.03.2017, i.e., 8 days after the incident when the police recorded their statement under Section 161 Cr.P.C. Their this highly unnatural conduct as well as the fact that they came into picture for the first time after 8 days of witnessing the crime, [2026:RJ-JP:1001-DB] (12 of 52) [CRLAD-131/2021] renders their testimony highly doubtful and uncreditworthy. Further, Shri Narayan Lal (PW21) has stated, during his cross- examination, that he had witnessed the incident from a place about 500 meters away. He further admits that he was 70 years old and did not use spectacles. He has also admitted that he has lost vision in an eye and had a corneal opacity (phoola) in one eye. Thus, it was highly improbable that he has seen the incident as claimed by him. In the case of Din Dayal (supra), it was held as under: "3. What is contended by the learned counsel for the appellant is that the High Court should not have discarded the evidence of these 4 witnesses particularly when the trial Court after carefully scrutinising it held that it was reliable and trustworthy. We find that the High Court has given good reasons for taking a different view. It has pointed the improbability of the version given by them. The witnesses had not accompanied the deceased to the hospital nor had taken any trouble of going and informing the police about what had happened. After seeing the incidence they quietly went back to their home. It cannot be said that the view taken by the High Court that the conduct of the witnesses was not natural is unreasonable. They were not merely eye-witnesses. They were closely connected with the deceased. The High Court was, therefore, justified in not placing any reliance upon their evidence." In the instant case as well, we have already held that none of the aforesaid four eye witnesses, despite being closely related to the deceased; either accompanied him to the hospital or, had [2026:RJ-JP:1001-DB] (13 of 52) [CRLAD-131/2021] informed either his family members or the police, a highly unnatural conduct which renders their testimony to be unreliable. The learned trial court has gravely erred in recording a finding that argument of the defence that testimony of the aforesaid four witnesses was not trustworthy, was not tenable inasmuch as they have failed to produce any evidence to show their presence at a place other than the place of incident. This approach of the learned trial court was wholly misconceived and against the well settled criminal jurisprudence which warrants that it is for the prosecution to prove its case beyond reasonable doubt and not for the defence to prove its innocence. This misconceived approach of the learned trial court has vitiated its findings. We further find that the learned trial court has gravely erred in holding that although, the complainant-Shri Ramesh Chand Sharma (PW23) has been declared hostile; but, in his cross- examination by the prosecution, he has shown presence of the appellants at the place of incident and murder of the deceased by them and therefore, his testimony was not liable to be rejected in its entirety. Indisputably, it is not even prosecution’s case that Shri Ramesh Chand Sharma was an eye witness and hence, by no means, he could have testified the presence of the appellants at the place of incident and commission of the offence by them, as alleged. As per the prosecution case, the incident has occurred at Bakshawala JDA Scheme. The witnesses S/Shri Govind Narayan Sharma (PW2) and Shrawan Lal (PW20) have stated that they witnessed the incident when they were going from village Asawala [2026:RJ-JP:1001-DB] (14 of 52) [CRLAD-131/2021] to purchase mawa from the shop of Ladu Ram Mawawala. However, the another prosecution witness namely; Shri Narayan Lal (PW21) has stated, during his cross-examination, that if somebody was to come to the shop of Ladu Ram Mawawala from village Asawala, he need not go to JDA Scheme Bakshawala which also renders presence of the PW2 and PW20 at Bakshawala to be highly suspicious. This fact also reflects that they have not witnessed the incident as claimed. Furthermore, although, all of them claimed to have tried to stop the blood coming out of the body of the deceased; but, it is not corroborated from the attending circumstances. The site plan (Ex.P76) as well as the inspection report of the site (Ex.P37) prepared by the State Forensic Laboratory show that a huge amount of blood of the deceased spattered on the road; however, all the aforesaid eye witnesses have claimed that their clothes were not blood soiled; but, only their hands which they washed. It was highly improbable, if not impossible that their clothes did not get blood stained had they tried to stop the blood gushing out from the body of the deceased. However, one of the eye witnesses namely; Shri Shrawan (PW20) has admitted during his cross- examination that after returning back to home, he had washed the blood stained hands and clothes. Their Lordships have, in the case of Muluwa (supra), held as under: “17. It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; [2026:RJ-JP:1001-DB] (15 of 52) [CRLAD-131/2021] for, evidence is to be weighed not counted. Since the evidence of PWs 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable.” Thus, it was held by the Hon’ble Supreme Court that testimony of one infirm witness cannot be corroborated by another infirm witness. As we have already held that the testimony of none of the so called four eye witnesses is credible, they cannot be treated to be corroborating each other. This Court further notices that it has been the prosecution case that appellant-Rambabu inflicted multiple axe blows and the appellant Mangal Pandey opened a gun fire on the body of the deceased to cause his death. In so far as ocular evidence is concerned, though, we have already held that same is not reliable to connect the appellants with the alleged offence; but, we, now, propose to examine the same qua the aforesaid allegation. Shri Govind Narayan Sharma (PW2) has stated that Rambabu had inflicted two blows with axe on the temple of the deceased and one blow on his neck. However, during his cross- examination, he has admitted that these averments are missing in his 161 Cr.P.C. statement (Ex.D1). Shri Ram Avtar Sharma (PW19) has alleged that Rambabu inflicted only one blow with axe on the neck of the deceased. During his cross-examination, he has also admitted that this averment is missing from his police statement (Ex.D5). Shri Shrawan (PW20) has deposed that Rambabu [2026:RJ-JP:1001-DB] (16 of 52) [CRLAD-131/2021] inflicted three blows without specifying the weapon used. In his cross-examination, he too admits that this allegation is absent from his police statement (Ex.D6). The remaining eye witnesses namely; Shri Narayan Lal (PW1) has alleged that Rambabu inflicted, with axe, two injuries on left ear of Madan Mogra, one blow on back side of the neck, one on elbow of left hand, one on arm and one on ankle of left leg. But, in his cross-examination, he has admitted that these allegations did not find place in his police statement (Ex.D7). From the aforesaid testimony, it is apparent that none of the two witnesses are consistent as to the injuries inflicted by the appellant-Rambabu on the body of the deceased. Further, they all have admitted during their cross-examination, when confronted with their police statement, that these allegations were absent therein. Being material contradiction, it renders their testimony unreliable so far as allegation against the appellant-Rambabu is concerned. Moreover, we are also not convinced that the prosecution has been able to establish that the axe allegedly recovered from his possession was used in commission of the offence. As per its seizure memo (Ex.P63), it was recovered from a locked room which was opened by the appellant. However, his arrest memo (Ex.P6) does not reflect that key of lock was found in his possession. While, Shri Deepak Bagra (PW16), one of the attesting witnesses, has stated that Rambabu has opened the lock of his room but feigned ignorance during his cross-examination, when suggested, as to with whom the key was lying, the remaining attesting witness: Shri Kana Ram Sharma (PW29), has turned [2026:RJ-JP:1001-DB] (17 of 52) [CRLAD-131/2021] hostile and has stated, during his cross-examination by the learned Assistant Public Prosecutor that site plan of the recovery (Ex.P65) was prepared behind his back. On the other hand, the Investigating Officer (PW32) has stated in his cross-examination that the lock was opened with the key provided by Shri Dhanna Lal-father of Rambabu; but, neither the seizure memo nor, the site plan of the axe reflect his presence. Even assuming that the key was provided by the father of the appellant, it establishes that the room was not in the exclusive possession of Rambabu which castes a doubt as to recovery of the axe on behest of the appellant. Our view gets support from the judgement of the Hon’ble Supreme Court in the case of Govind vs. State of Haryana- 2025 SCC OnLine SC 2456 wherein, it was held that recovery made from a place accessible to other family members and not in exclusive possession of the accused, is doubtful. Further, the Hon’ble Supreme Court in the case of Nikhil Chandra Mondal vs. State-(2023) 6 SCC 605 held as under: “20. The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accesible to one and all. We find that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra-judicial confession.” [2026:RJ-JP:1001-DB] (18 of 52) [CRLAD-131/2021] We find it relevant to mention here that although, as per the FSL report (Ex.P99), human blood was found on the axe but, its blood grouping remained inconclusive. Their Lordships have held in the case of Raju Naykar (supra) as under: “As per the FSL report, the bloodstains found on the dagger were of human blood. However, the FSL report does not show that the blood found on the dagger was of the blood group of the deceased. Apart from that, even the serological report is not available.” In view of the law laid down by Hon’ble Supreme Court in the aforesaid case, we have no hesitation in holding that in absence of blood grouping, mere presence of human blood on axe was not sufficient to connect it with the alleged offence especially, in the attending circumstances discussed hereinabove. For the similar reasons, recovery of the blood stained t-shirt, allegedly worn by the appellant-Rambabu at the time of incident from the same room in which the axe was recovered, is rendered doubtful and mere presence of the human blood on it, as per Ex.P99, does not connect it with the offence in the absence of blood grouping. In view of aforesaid analysis, this Court is not convinced that the prosecution has been able to establish beyond shadow of doubt that Rambabu inflicted injuries on the body of the deceased with the recovered axe. Allegation against Mangal Pandey is of using a pistol in commission of the offence. While, Shri Govind Narayan Sharma [2026:RJ-JP:1001-DB] (19 of 52) [CRLAD-131/2021] (PW2) has stated that Mangal Pandey had a revolver in his hand but, he did not say that it was fired. Shri Ram Avtar Sharma (PW19) has deposed that the appellant fired the pistol after two minutes of infliction of injury by Rambabu. He, however, in his cross-examination, admits that this allegation is absent from his police statement (Ex.D5). Another witness namely Shri Shrawan (PW20) has alleged that Mangal Pandey opened fire from the pistol but, he admits during his cross-examination that the deceased was not hit from it. The remaining eye witness Shri Narayan Lal (PW21) has deposed that Mangal had a gun with which he fired upon the deceased. In his cross-examination, he claims to know the difference in between the pistol and the gun by stating that the gun is bigger while, the pistol is smaller. Thus, while, the PW2, though, alleged that the appellant had a revolver in his hand but, did not allege that he fired it, the PW19 has alleged that it was fired but, without any allegation that it was aimed at the deceased and he was hit. The PW20, though alleged that Mangal Pandey fired pistol but, did not allege that either the deceased was aimed or he was hit and the PW21 has alleged that the appellant was carrying a gun. Indisputably, no gun has been recovered from the appellant’s possession. However, except PW21, none of the remaining eye-witnesses has alleged that Mangal fired the pistol at the deceased or that he was hit rather, PW20 admits, during his cross-examination, that the bullet did not hit the deceased. Further, Dr. Omprakash Dhania (PW17)-a member of the Medical Board which conducted the autopsy of the deceased, has stated that in the postmortem report, none of the members of [2026:RJ-JP:1001-DB] (20 of 52) [CRLAD-131/2021] the Board did mention that any injury was caused by the firearm. In the same breath, he has stated that the injury No. 4 could be on account of road rub. He has further admitted that while conducting the postmortem of the body of the deceased, they neither found any gun powder nor, traces of its presence. Although, in his examination-in-chief, he did not allege that the deceased received any gun injury but, in his cross-examination, he has stated that the injury No. 4 could be possible on account of the firearm. However, Shri Sushil Kumar Banerjee (PW11)-the Senior Scientist In-charge, Mobile Forensic Unit, Jaipur City, who conducted inspection of place of the incident alongwith inspection of the body of the deceased, has categorically stated, during his cross-examination, that he did not find any sign of firearm on the body of the deceased. Further, the inquest memo (Ex.P86) also does not reflect any such injury on the body of the deceased. Moreover, the appellant was arrested vide Ex.P13 on 09.03.2017 and has made disclosure statement at about 8.25 A.M. on 10.03.2017 with regard to a revolver whereupon, a pistol was recovered from his residence on 10.03.2017 vide Ex.P52 and was sealed in a packet marked “G”. The site plan of the recovery was also prepared on 10.03.2017. However, as per the malkhana register-Ex.D2A, the packet marked “G” containing the pistol was deposited on 09.03.2017, i.e., a day prior to its seizure. This fact stood corroborated from the testimony of Shri Maharaj (PW31)- the Malkhana In-charge. Conspicuously, the prosecution has offered no explanation as to how the pistol recovered on 10.03.2017, came to be deposited in the malkhana on [2026:RJ-JP:1001-DB] (21 of 52) [CRLAD-131/2021] 09.03.2017. Furthermore, a perusal of the site plan reflects that in this residential house, other family members of the appellant are also residing rendering it not to be in his exclusive possession. The circumstances that the prosecution evidence is self contradictory as to whether the appellant Mangal Pandey fired from the pistol recovered at his instance or, that, it was aimed at the deceased or, that it hit him and in the light of admission of PW7-Dr. Omprakash Dhania that the postmortem report did not mention any injury by firearm, absence of any gun powder or its traces in the body of the deceased in view of the fact that the injury no.4 is bone-deep and only a possibility expressed, when confronted in the cross-examination, that the injury No. 4 could be on account of a firearm as also that it could be on account of road rub as well, opinion of Shri Sushil Banerjee (PW11) that body of the deceased did not reflect any sign of firearm injury, recovery of the pistol from a place not in exclusive possession of the appellant and its deposition in the malkhana on 09.03.2017 whereas, it was recovered and seized on 10.03.2017, render the prosecution story untrustworthy to rely upon and therefore, we are not persuaded to affirm finding of the learned trial Court that the appellant caused death of Shri Madan Lal Mogra by inflicting a gun shot injury on his body with the pistol recovered at his instance. So far as, the finding of the learned trial Court that the cartridge recovered from the place of incident established that the appellant Mangal Pandey opened gun fire which hit the deceased [2026:RJ-JP:1001-DB] (22 of 52) [CRLAD-131/2021] and contributed to his death is concerned, the evidence on record suggests otherwise. It has already been held by us that the prosecution could not establish that he opened fire from the pistol allegedly recovered from his possession which resulted into an injury on the body of the deceased. The cartridge, as per Ex.P73- the seizure memo, was recovered from the place of incident at 4:30 p.m. on 28.02.2017; however, site plan of the incident (Ex. P76) prepared on 01.03.2017, reflects lying of an empty cartridge with 7.65 written on its base along with a metal piece- front part of the bullet near the place of incident. If the cartridge was already recovered on 28.02.2017, it was impossible that it was lying at the place of incident on 01.03.2017. Further, at the cost of repetition, we observe that Shri Sushil Kumar Banerjee (PW11) has categorically denied that the deceased had any firearm injury. However, Mohan Singh (PW7), the Sub-Inspector Armour has deposed that the pistol recovered was in working condition and the empty cartridge was fired from the pistol. This evidence needs no much deliberation in view of our finding already recorded that the prosecution could not establish, beyond reasonable doubt, that the pistol allegedly recovered from possession of the appellant- Mangal Pandey was, as a matter of fact, used by him in commission of the offence. There is one more important aspect of the matter. Some of the appellants were arrested on 04.03.2017 whereas, the so- called eye witnesses have surfaced, for the first time, on 08.03.2017. But, the prosecution has miserably failed to place on [2026:RJ-JP:1001-DB] (23 of 52) [CRLAD-131/2021] record any incriminating evidence available with them showing involvement of these appellants on the date of their arrest. Argument of the defence that to give a road accident colour of the murder, they have falsely been implicated, though, appears attractive on its first blush in the attending facts and circumstances of the case; however, we are not fully convinced with it, but it raises a doubt as to veracity of the prosecution case. As is apparent, the prosecution story starts from the written report dated 28.02.2017 submitted by Shri Ramesh (PW23) to the Police Station Sanganer Sadar, Jaipur at about 3.20 PM at the place of incident itself; but, from the cross-examination of Shri Dharamveer Singh (PW32)-the Investigating Officer, it is reflected that prior to that, at about 12.40 pm, a telephonic message was received from the PCR Jaipur City and PCR 108 Control Room that an accident has occurred at Shikarpura Road, JDA Quarters, Bakshawala and a person was lying there which was reduced in writing vide report no.1930 dated 28.02.2017 in the daily diary; but, conspicuously, it was not made part of the record by the Investigating Agency for no good reason and was suppressed. The site plan of the incident (Ex.P76) reflects pieces of broken helmet near the place of incident and lying of the motorcycle, the deceased was riding, in a dirty rivulet about 35 meters from the place of incident which stood corroborated from its seizure memo (Ex.P74). However, the prosecution has offered no explanation as to how the helmet was broken or the motor cycle reached the dirty rivulet travelling the distance of about 35 meters especially, in view of prosecution’s specific case that all the accused- [2026:RJ-JP:1001-DB] (24 of 52) [CRLAD-131/2021] appellants came in a Scorpio Car, blocked the motorcycle, surrounded the deceased so that he might not escape and assaulted him to death at the spot and ran way in the car. No doubt, absence of explanation by the prosecution creates a doubt as to veracity of its case; however, from the nature of injuries suffered by the deceased, as revealed from the postmortem report (Ex.P68), we are not fully satisfied that these could be on account of the road accident. Further, Dr. Om Prakash Dhania (PW17)-a Member of the Medical Board, who conducted the postmortem of the body of the deceased, was not suggested, during his cross- examination, that these injuries could be on account of the road accident. Be as it may, we have no hesitation in holding that the prosecution has not been able to connect, beyond reasonable doubt, the appellants with the death. In the conspectus of aforesaid analysis, we find that it was not safe to rely upon the testimony of the aforesaid four witnesses to record conviction of the appellants under Section 302 IPC. The another circumstance relied upon by the learned trial court is the conspiracy allegedly hatched by the appellant Rambabu, the master mind behind the whole incident, with co- accused. As per the prosecution case, the genesis of the murder was the altercation which took place a month and quarter ago in the village prior to the date of incident. As per the written report (Ex.P55) submitted by brother of the deceased, Gopal S/o Ram Sahai Prajapat and Rambabu had threatened his brother of his murder in middle of the village on account of the altercation. [2026:RJ-JP:1001-DB] (25 of 52) [CRLAD-131/2021] However, the police did not charge sheet Gopal S/o Ram Sahai Prajapat as he was not found involved in the matter. To prove animosity, Shri Ram Avtar Sharma (PW19) has stated in his examination-in-chief that about a month ago from the date of incident, there was an argument in between Rambabu and the deceased Madan Gopal and on that day, Rambabu had threatened him of taking his life. During his cross-examination, while denying that any scuffle took place in between deceased and Gopal Prajapat, in the same breath, he stated that on one side, there was deceased and on the other side, there were Gopal Prajapat and Rambabu. He has further stated that his statement recorded under Section 161 Cr.P.C. (Ex.D5) to the effect that there was an argument in between the deceased and the family of Gopal Prajapat about one and half month ago, was wrong and it did not contain the averment with regard to his scuffle with Rambabu. This contradiction has impeached his credibility. Shri Narayan Lal, as PW21, claimed that the scuffle took place in between the deceased and Rambabu in which Rambabu has threatened of his murder. He, however, admits during his cross-examination that his statement under Section 161 Cr.P.C. (Ex.D7) did not contain this allegation. Taking an entirely new turn, the Investigating Officer Shri Dharamveer Singh (PW32) has deposed that his investigation revealed that on 19.01.2017, there was an argument in between Madan Lal Mogra-the deceased and his neighbour Gopal Prajapat and to support Gopal, the appellant Rambabu and his mother came whereupon, the deceased abused and manhandled the mother of Rambabu. Since, members of the deceased family were [2026:RJ-JP:1001-DB] (26 of 52) [CRLAD-131/2021] large in number in the village than the accused side, he was waiting for a chance and on the fateful day, finding the deceased alone, the appellant- Rambabu, in conspiracy with the co-accused, murdered him. The learned trial court has relied upon this deposition on its face value without appreciating that it was not supported by evidence much less cogent. Thus, from the aforesaid testimony, it is apparent that the prosecution evidence is not consistent as to with whom the altercation of the deceased took place, i.e., with Rambabu or Gopal or with both and whether mother of Rambabu also intervened. Further, although, in the written report, it is claimed that threatening to take life was given in middle of the village; but, none of the villagers was examined to lend credentials to the case and the prosecution has relied upon the testimony of the so called four eye witnesses whose credibility has already been found to be doubtful. Moreover, although, Shri Narayan Lal (PW21) had deposed of a scuffle; but, conspicuously, he is a resident of village Asawala and not of village Bakshawala where the scuffle allegedly took place and it is not his deposition that on that day, he was present in the village Bakshawala. It is also revealed that the prosecution evidence is not consistent as to exactly what happened in between the deceased and either Rambabu or with Gopal Prajapat on the other side. While, in the written report, it is alleged that there was an altercation in between them, PW19 has stated that there was an argument in between the deceased and Rambabu while, the PW21 has stated it to be a scuffle. Shri Ramesh Chand Sharma (PW23) [2026:RJ-JP:1001-DB] (27 of 52) [CRLAD-131/2021] has, although, been declared hostile; but, in his cross-examination by the learned Assistant Public Prosecutor, has stated that on 19.01.2017 Gopal Prajapat and Rambabu had threatened of murder on account of something without disclosing its nature. Further, even assuming that a scuffle has taken place in between the deceased and Rambabu/Gopal Prajapat but, from its nature as revealed from the sketchy evidence, we are not convinced that an inference could be drawn that it was of so grave nature that the appellant Rambabu nurtured the grudge to the extent of eliminating the deceased. In view thereof, we are not convinced that the prosecution has been able to establish a clear motive of the appellant- Rambabu of eliminating the deceased. Further, the learned trial court has supported the theory of conspiracy on the premise that the appellant-Rambabu Sharma was in constant contact with the co-accused on the date of incident and prior to that over mobile and all of them assembled at a place on the date of incident, proceeded to the place of incident in a Scorpio Car, after assaulting and thereby, causing death of Madan Gopal Mogra, fled. The learned trial court has held that the appellant Rambabu was using the mobile no.93146-21322. Indisputably, neither the mobile phone being used by him nor, the SIM bearing the aforesaid mobile no. could be recovered and it has been prosecution case that both were destroyed by him; but, neither he was charge-sheeted under Section 201 IPC nor, any such charge was framed nor, there is any evidence on record to support the [2026:RJ-JP:1001-DB] (28 of 52) [CRLAD-131/2021] allegation. Further, we do find that the prosecution could not establish that the aforesaid mobile no. either belonged to Rambabu or he was using the same prior to the incident. The Customer Application Form (CAF) for this mobile no. (Ex.P61) is in the name of Shri Krishna Enterprises, a registered firm with Shri Krishna Kumar Choudhary as its sole Proprietor as per the VAT registration certificate. The learned trial court has connected the appellant-Rambabu with this mobile no. on the strength of a letter dated nil issued allegedly by Shri Krishna Enterprises to the Vodafone-the service provider which reflects one Rambabu as Executive of the firm and user of the said mobile no. as also the subscriber detail report (Ex.P60). Shri Rajesh Tripathi (PW15), the Nodal Officer, Vodafone Company, who has proved these documents, has admitted in his cross-examination that in the User ID/letter, details of Rambabu such as his father’s name, age, address etc. are not mentioned. He has further admitted that this document neither bears the seal and signature of the person submitting it nor, the endorsement of its receipt by the Vodafone nor, the signature of the recipient. He has also stated that he did not know whether it pertained to the year 2002 or to the year 2020 and it was undated. With regard to Customer Details Report (Ex.P60), he admitted that the customer’s name in it was Shri Krishna Enterprises and name of Rambabu was not mentioned. Thus, while holding that both these documents connect the appellant-Rambabu with the subject mobile, the learned trial court did not appreciate the aforesaid vital evidence. Conspicuously, Shri Krishna Kumar, the Proprietor of Shri Krishna Enterprises was [2026:RJ-JP:1001-DB] (29 of 52) [CRLAD-131/2021] not produced in the witness box by the prosecution to prove that this mobile no. was being used by the appellant. As a matter of fact, we find no evidence available on record to demonstrate that the mobile no.93146-21322 was being used by the appellant- Rambabu. Furthermore, the learned trial court has gravely erred in drawing an adverse inference against the appellant Rambabu on the premise that he has failed to lead any evidence to demonstrate that the aforesaid mobile no., as a matter of fact, was being used by somebody else and also for the reason that Krishna Kumar, the subscriber, did not appear in the witness box to depose that he was using the same and not the appellant. Thus, it is apparent that the learned trial court has applied the theory of "reverse burden of proof" not applicable in the instant case. Therefore, we have no hesitation in holding that findings of the learned trial court in this regard are perverse and its approach was wholly misconceived against the settled canons of law. Since, the learned trial court has held the appellant-Rambabu to be kingpin of the entire conspiracy and the primary evidence connecting him with the co-accused was held to be the mobile conversation amongst them, in view of the aforesaid analysis of the evidence, we are of the view that the prosecution case falls on all fours; but, we propose to analyse the evidence with regard to mobile phone/number allegedly used by the co-accused. Appellant-Ram Kishor is alleged to have used the mobile no.99298-58565. Indisputably, the SIM with the aforesaid mobile no. could not be recovered as it was alleged that the same was destroyed by the appellant after the incident. But, conspicuously, [2026:RJ-JP:1001-DB] (30 of 52) [CRLAD-131/2021] neither he was charge-sheeted for the offence under Section 201 IPC nor, he was put to trial for it. As per the subscriber detail (Ex.P80) proved by Shri Avinash Pandey (PW25)-the Nodal Officer Airtel Mobile Company, it was issued in the name of Ram Swaroop Meena who is alleged to be maternal uncle of the appellant. But, neither Ram Swaroop Meena was examined to demonstrate that not him; but, the appellant Ram Kishor was using this mobile no. nor, any other evidence was produced to reflect so nor, any evidence was led to demonstrate that Shri Ram Swaroop Meena was maternal uncle of the appellant. A perusal of the finding of the learned trial court reflects that it was held that the Investigating Officer has stated that the appellant was using this mobile no. which stood corroborated from the testimony of Shri Avinash Pandey and Ex.P79- the call details record. However, neither Shri Avinash Pandey has averred that the subject mobile no. issued in the name of Ram Swaroop Meena was being used by the appellant-Ram Kishor nor, he could have deposed so nor, it is so reflected from the CDR (Ex.P79). Thus, the finding of the learned trial court in this regard suffers from the vice of perversity. The learned trial court has further held that the appellant Mangal Pandey was using the mobile no.76108-41662 which was issued in the name of Shri Tara Chand-his cousin. The learned trial court has held, in para 65 of the impugned judgement as under: "65- blh dze esa lg vfHk;qDr eaxy ik.Ms ds }kjk mDr izdj.k esa vius eksckbZy uEcj dk mi;ksx djrs gq, e`rd enu xksiky eksxjk dh gR;k djus esa izR;{k o vizR;{k :i ls lg;ksx fd;k gS] mlds ckcr~ tks lk{; vfHkys[k [2026:RJ-JP:1001-DB] (31 of 52) [CRLAD-131/2021] ij jgh gS] ml ij Hkh izdk’k Mkyuk pkgsaxsA mDr izdj.k esa lg vfHk;qDr eaxy ik.Ms dks iqfyl }kjk vkjksfir vijk/k ds ckcr~ fnukad 09-03-2017 dks fxjQ~rkj fd;k gSA nkSjkus vuqla/kku vfHk;qDr eaxy ik.Ms ls dksbZ eksckbZy cjken ugha gqvk gS] ysfdu nkSjkus vuqla/kku vfHk;qDr eaxy ik.Ms ds }kjk eksckbZy uEcj 7610841662 dk mi;ksx fujUrj :i ls fd;k tkuk vfHkys[k ij gSA mDr eksckbZy dh fle vfHk;qDr eaxy ds pkpk ds yMds rkjkpan ds uke ls gS] ftldk mi;ksx vfHk;qDr eaxy ik.Ms }kjk fd;k tkuk vfHkys[k ij vk;k gSA mijksDr ckcr~ rkjkpan ih-MCY;w-9 ds :i esa bl U;k;ky; ds le{k ijhf{kr gqvk gS] ftlus vius c;kuksa esa ;g Li"V dFku fd;k gS fd ^^eaxy ik.Ms mlds rkÅ dk yMdk gS] mDr fle dk mi;ksx vfHk;qDr eaxy ik.Ms }kjk yEcs le; ls fd;k tk jgk Fkk** mDr rF; iqfyl vuqla/kku ds nkSjku izn’kZ ih-35 iqfyl c;ku esa mlus dfFkr gqvk gSA mDr eksckbZy uEcj dh dkWy fMVsy o lR;kiu ds ckcr~ izn’kZ ih-81 ds :i esa ,;jlsy dEiuh ds lgk;d uksMy vf/kdkjh dh fjiksVZ vfHkys[k ij jgh gS] ftlesa mDr eksckbZy uEcj rkjkpan ds uke gksus ds rF; of.kZr gSa] tks bl U;k;ky; ds le{k xokg ih-MCY;w26 ckcwyky 'kekZ ds :i esa ijhf{kr gqvk gS] o bl rF; dh xokg us lEiqf"V dh gS fd vfHk;qDr eaxy ik.Ms eksckbZy uEcj 7610841662 dk mi;ksx Lo;a djrk FkkA mijksDr ckcr~ vuqla/kku vf/kdkjh ih-MCY;w-32 /keZohj flag] rRdkyhu ,l-,p-vks- iqfyl Fkkuk lkaxkusj lnj ds }kjk Hkh vius c;kuksa esa dFku fd;s gSaA mijksDr eksckbZy uEcj dk mi;ksx vfHk;qDr eaxy ik.Ms }kjk fu;fer :i ls fd;s tkus ckcr~ dkWy fMVsy izn’kZ ih-84 o izn’kZ ih-85 dks uksMy vf/kdkjh ih- MCY;w26 ckcwyky 'kekZ ds }kjk izekf.kr fd;k x;k gS] ftls vfHk;kstu }kjk iznf’kZr djok;k x;k gS] ftlds vuqlefFkZr /kkjk 65ch lk{; vf/kfu;e dk izek.k i= izn’kZ ih-82 is’k dj iznf’kZr djok;k gSA mijksDr dky fMVsy ds voyksdu ls ;g Li"V gS fd vfHk;qDr eaxy ik.Ms fujUrj :i ls fnukad 26-02-2017 rd vfHk;qDr jkeckcw 'kekZ ls eksckbZy ij okrkZ djrk jgk gS vkSj vafre :i ls fnukad 26-02-2017 dks lqcg 6-46 ,-,e- ij Hkh okrkZ gqbZ gSA " Whereas, Shri Tara Chand as PW9, has stated in his examination-in-chief as under: [2026:RJ-JP:1001-DB] (32 of 52) [CRLAD-131/2021] “iqfyl us esjs eksckbZy uEcj 7610841662 ds laca/k esa eq>ls iwNrkN dh FkhA ;g lhe esjs uke ls gS vkSj eSa gh blh iz;ksx esa ysrk gwaA bl lhe esa vkSj dksbZ iz;ksx esa ugha ysrk FkkA ” Whereupon, he was declared hostile and was subjected to cross-examination by the learned Additional Public Prosecutor wherein, he stated as under: “;g dguk lgh gS fd vfHk;qDr eaxy esjs rkmth dk yMdk gS ijUrq 4&5 o"kZ igys gekjs tehuksa dk fookn gqvk Fkk blfy, cksypky ugha gSA iqfyl us eq>ls iwNk Fkk fd vkidh jkeckcw ls ckr gqbZ Fkh D;k rks eSaus iqfyl dks dgk Fkk fd jkeckcw izksiVhZ dk dke djrk gS esjs ikl 4&5 IykV Fks ftudks cspus ds laca/k esa esjh jkeckcw ls ckr gqbZ FkhA iqfyl us fyf[kr esa esjs dksbZ c;ku ugha fy;s Fks dsoy ekSf[kd iwNrkN djds gh iqfyl us eq>s NksM fn;k FkkA iqfyl c;ku izn’kZ ih 35 dk , ls ch Hkkx eSaus iqfyl dks ugha fn;kA ;g dguk xyr gS fd mDr lhe tks esjs uke gS mldks esjs rkmth dk yMdk eaxy iz;ksx esa ysrk gksA ” When confronted by the learned counsel for the appellant, he has stated as under: “bl lhe dks tc ls dz; fd;k Fkk rc ls gh eSaus gh iz;ksx esa fy;k Fkk tc rd iqfyl okyksa us iwNrkN ds nkSjku ugha fy;k FkkA” Thus, he has unequivocally deposed that from the inception of issuance of this mobile no. to him, only he has used the same and was never used by the appellant Mangal Pandey whereas, the learned trial Judge has quoted his statement entirely otherwise vitiating the findings recorded by him. Further, the learned trial court has erred in holding that the aforesaid fact stood corroborated from police statement (Ex. P35) of PW-9; but, as is reflected from his cross-examination, he has not corroborated any part of his Section 161 Cr.P.C. statement rather, has denied it. Moreover, it was also held by the learned [2026:RJ-JP:1001-DB] (33 of 52) [CRLAD-131/2021] trial court that Shri Babu Lal Sharma (PW26)- the Assistant Nodal Officer, Aircel Company, has also corroborated that the aforesaid mobile no. was being used by the appellant Mangal Pandey which was also evident from the call detail reports Ex.P84 and Ex.P85, but, neither he has stated so nor, he could have testified so nor, the CDRs established so. In view of aforesaid analysis, it is apparent that the findings of the learned trial court are based on no evidence and the prosecution could not connect the appellant Mangal Pandey with the aforesaid mobile no. In the impugned judgement, the appellant Mahesh Meena is stated to be in contact with the master mind of the conspiracy, i.e., Rambabu from his mobile no. 94135-75788. However, the prosecution has miserably failed to lead any evidence to demonstrate that this mobile no. was either issued in his name or, was being used by him. The Investigating Officer-Shri Dharamveer Singh (PW32) has categorically admitted that he did not produce any document to demonstrate in whose name the aforesaid mobile no. was issued. Further, as per the seizure memo of the mobile phone of the appellant (Ex.P24), its IMEI No. were 911524854450506 and 911524854450514. However, as per his call details report (Ex.P34), the IMEI No. of the mobile phone used by him for the subject call was 911524854450510, i.e., it does not tally with any of the IMEI Nos. Although, the Investigating Officer has stated that in the CDR, last digit of the IMEI No. is always reflected as "0" but he has admitted that no such technical information is part of the charge sheet/record and his assertion remained unsubstantiated. Thus, we are not convinced that the [2026:RJ-JP:1001-DB] (34 of 52) [CRLAD-131/2021] prosecution has been able to establish that the appellant Mahesh Meena was in contact with the appellant Rambabu over mobile and was a part of conspiracy to eliminate the deceased Madan Gopal Mogra on that count. Learned trial court has held the appellant-Prince Kumar as one of the conspirators with the aid of the mobile no.76110-05839 recovered from his possession vide seizure memo (Ex.P25). As per the CAF (Ex.P83), the aforesaid mobile no. was issued in the name of Rajneesh Kumar Singh. The learned trial court has held that he is brother of the appellant. However, we do not find any evidence available on record to draw such an inference except name of their father being common. Rather, the evidence reflects that they are resident of different addresses. Further, the Investigating Officer (PW32) has admitted during his cross-examination that there was no evidence either to demonstrate that the appellant Prince Kumar was brother of Rajneesh Kumar or that the subject mobile no. was being used by the appellant. He has further admitted that the IMEI no. of the mobile phone seized from the appellant vide Ex.P25 does not tally with its CDR (Ex.P85). In view of aforesaid discussion, this Court is not satisfied that the prosecution has been able to establish that the appellant-Prince Kumar was part of the conspiracy with the aid of the subject mobile no. At the time of arrest of the appellant-Mahaveer Sharma, two mobile phones with two SIMs in one mobile phone and with one SIM in another mobile phone, were found in his possession which were seized vide Ex.P2. As per the CAF (Ex.P62), the mobile no. 9828766765 was issued in his name. The learned trial court has [2026:RJ-JP:1001-DB] (35 of 52) [CRLAD-131/2021] held that the CDR of the aforesaid mobile no. (Ex.P79) reflects that he was in constant touch with the main accused Rambabu as well as other co-accused persons; but, as already held by this Court, the prosecution has miserably failed to establish that the mobile phones/nos. allegedly used by the co-accused, either belonged to them or were, as a matter of fact, were used by them before the incident. We further find that while recording plea of the appellants under Section 313 Cr.P.C., they were not suggested the incriminating evidence sought to be relied upon by the prosecution touching the aforesaid material aspect of the case. Such as, the appellants Rambabu, Ram Kishor Meena, Mangal Pandey, Mahesh Meena and Prince Kumar were not suggested that the mobile no. allegedly used by them, were either issued in the name of their relative/employer and/or, as a matter of fact, were being used by them before the commission of offence. Further, the appellants Rambabu and Ram Kishor were not suggested that they have destroyed the mobile phone/the SIM, as alleged by the prosecution. It is trite law that recording of plea of accused under Section 313 Cr.P.C. is not a matter of procedural formality; but, is based on the cardinal principle of natural justice and it has to be presumed that the accused has suffered prejudice on account of such important omission. Their Lordships have, in the case of Indrakunwar (supra), held as under: “33. Keeping in view the understanding of the principles of privacy and the propositions of law in regard thereto, we now travel to what, by law, may be required of the convict appellant in her statement under Section 313 Cr.P.C. [2026:RJ-JP:1001-DB] (36 of 52) [CRLAD-131/2021] 34. A perusal of various judgments 15 rendered by this Court reveals the following principles, as evolved over time when considering such statements. 34.1 The object, evident from the Section itself, is to enable the accused to themselves explain any circumstances appearing in the evidence against them. 34.2 The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict. 34.3 The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e., audi alterum partem. 34.4 The ultimate test when concerned with the compliance of the Section is to enquire and ensure whether the accused got the opportunity to say his piece. 34.5 In such a statement, the accused may or may not admit involvement or any incriminating circumstance or may even offer an alternative version of events or interpretation. The accused may not be put to prejudice by any omission or inadequate questioning. 34.6 The right to remain silent or any answer to a question which may be false shall not be used to his detriment, being the sole reason. 34.7 This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution's burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution's case. 34.8 This statement is to be read as a whole. One part cannot be read in isolation. 34.9 Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement may be used to lend credence to the case of the prosecution. [2026:RJ-JP:1001-DB] (37 of 52) [CRLAD-131/2021] 34.10 The circumstances not put to the accused while rendering his statement under the Section are to be excluded from consideration as no opportunity has been afforded to him to explain them. 34.11 The Court is obligated to put, in the form of questions, all incriminating circumstances to the accused so as to give him an opportunity to articulate his defence. The defence so articulated must be carefully scrutinized and considered. 34.12 Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision.” In the backdrop of aforesaid precedential law, we hold that the learned trial court committed manifest error in recording conviction of the appellants relying on the incriminating evidence without affording them an opportunity to explain the same. Furthermore, although, the learned trial court has recorded a finding that call record details available on record reflect presence of the appellants near the place of incident, their assembly at a common place and thereafter, their movement to the place of incident; but, we do not find any evidence to corroborate such finding. The Investigating Officer (PW32) has categorically admitted during his cross-examination that no document to show location of the appellants before the place of incident was part of the record. As a matter of fact, the story propounded by the investigating agency with regard to location of the appellants before the incident, has been accepted by the learned trial court on its face value without appreciating that no evidence was available to substantiate the same. [2026:RJ-JP:1001-DB] (38 of 52) [CRLAD-131/2021] The aforesaid findings also demolishes the prosecution case that the appellants had a meeting of mind prior to commission of the offence, their locations at the places relied upon by the prosecution and that they assembled at a common place and thereafter, proceeded to the scene of crime on the strength of their call details and mobile locations. Moreover, although, the learned trial court has held that the appellant-Mahaveer Sharma was cousin of the appellant-Rambabu and other co-accused were their friends but, the prosecution did not lead any evidence to substantiate the same. To fortify its findings, the learned trial court has also relied upon the criminal record of the appellant Mangal Pandey (Ex.P92) as well as that of Rambabu and Mahaveer (EX.P93) but, the same reflect that Mangal Pandey was not the accused in any of the FIRs registered against the co-accused Rambabu and Mahaveer. Even assuming that the prosecution was able to prove contact of the appellants with each other on mobile before the incident as claimed; but, in absence of contents of the conversation which took place, mere call details are not sufficient to support the theory of conspiracy. In the case of Mohd. Javed (supra), the Hon’ble Supreme Court held as under: “According to the prosecution on 22.04.1995 at 8.00 p.m., PW-1 Mateen Khan was going on motorcycle with the deceased on main road NH-43. The assailant, who was later identified as Mangal Singh fired two gun shots from behind resulting in death of Ravi Srivastav. Apart from the identification of Mangal Singh as the assailant by direct evidence of P.W-1, the eye witness, all the five appellants were implicated only on account of phone [2026:RJ-JP:1001-DB] (39 of 52) [CRLAD-131/2021] connectivity as per call records which information has been collected during the investigation. We have heard learned counsel for the parties and perused the evidence on record. We do not find it safe to uphold conviction of the appellants solely on the basis of call records, in absence of any other corroborative evidence. Accordingly, we give them benefit of doubt and set aside their conviction and sentence and the acquit them.” (Emphasis supplied) Their Lordships have, in the case of Babubhai Bheemabhai Bokhariya (supra), held as under: “21. The other evidence sought to be relied for summoning the appellant is the alleged conversation between the appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from the call records alone, the appellant’s complicity in the crime does not surface at all.” (Emphasis supplied) Relying upon the aforesaid judgement, a coordinate bench of this Court has, in the case of Arvind Kumar Jain (supra), held as under: “12. In the light of above, consideration of the material on record in the present case shows that it is not in dispute that the present petitioner was Additional DG (Crimes) at the relevant time. The first fact which has been brought against the petitioner is that there were phone call six times between the petitioner and Rajendra Singh Rathore from 4.10.2006 to 19.10.2006. The contention of the CBI [2026:RJ-JP:1001-DB] (40 of 52) [CRLAD-131/2021] is that they hatched a conspiracy on the phone for the murder of deceased Daria and after the first phone call on 4.10.2006, the SOG came in action and he went in search of deceased on 5.10.2006 again when there was a phone call between the two on 16.10.2006, the team of the SOG went in search of deceased two times in a day which clearly shows the conspiracy between the two. The counsel for the petitioner has brought to the notice of the Court that there is a clear statement of Sushila Devi, complainant herself and Tila, PW/79 that SOG was already trying to arrest Dara Singh from 25-26 September, 2006 meaning thereby that before the first mobile talk between Rajendra Rathore and petitioner dated 4.10.2006 and there is nothing on record to show that what was the talks between the two persons and unless the phone calls are deciphered into the conversation it cannot be relied upon and reliance has also been placed on Section 65-A of the Evidence Act in which evidence of mobile call have not been included. Hence taken on its face value, the phone calls between the two does not create any suspicion and reliance has been placed on Babubhai Bhimabhai Bokhiria and Anr. vs. State of Gujarat and Ors., AIR 2014 SCW 2152 wherein in Para 21, the Apex Court has held as under: “The other evidence sought to be relied for summoning the Appellant is the alleged conversation between the Appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from call records alone, the Appellant's complicity in the crime does not surface at all.” Further reliance has been placed on Prahlad Sharma vs. State of Raj., 2010 (2) WLN 164 where this Court has held as under: “The call details as submitted by the Police are also not helpful, as it is not unusual for a person to speak to his son or to his servant. Merely because the petitioner had called up his son and his servant, would not lead to the conclusion that the petitioner [2026:RJ-JP:1001-DB] (41 of 52) [CRLAD-131/2021] was involved in the alleged murder. After all the contents of the call are unknown. Therefore, what conversation had taken place between the petitioner and his son or servant cannot be deciphered.” Here in the present case the facts are not in dispute that Mr Rathore was Minister for Parliamentary Affairs and Assembly was in session hence phone call between the two could not caste any suspicion. 13. In the case in hand nothing has been brought on record regarding the contents of the conversation and call records alone could not brought the complexities of the petitioner in the crime. It has been stressed upon by the CBI that on the phone calls between the two, the SOG has came in action and they went in search of deceased but the charge-sheet speaks itself that deceased Daria was wanted in many cases he was involved in more than 20 cases and he was a hardened criminal and nothing has been brought on record that after phone call between the two, the petitioner had made phone calls to any members of the SOG or member of SOG has made any phone call to petitioner, hence the chain is not complete and it could not be presumed by reasonable prudence that the phone calls have any probable connection with the murder of the deceased.” (Emphasis supplied) In the aforesaid cases, it was held that in absence of the contents of the conversation which took place between the accused person, the factum of mere conversation is not sufficient to show their complicity in the crime. In the instant case, indisputably, the prosecution did not lead any evidence to reflect the contents of the conversation which allegedly took place between the appellants. Further, even assuming that the [2026:RJ-JP:1001-DB] (42 of 52) [CRLAD-131/2021] appellants were relatives or friends of each other, it was not unnatural to have conversation amongst them and mere fact that they have conversed with each other on the date of incident or prior to that, which even otherwise could not be established by the prosecution, was not sufficient to warrant the theory of conspiracy. The another factor relied upon by the learned trial court to support the theory of conspiracy is the appellants reaching to the place of incident in the Scorpio Car No. RJ14 UC 9042 and after commission of the offence, to flee in it which was hidden by them at the residence of sister of appellant-Mahaveer and it being blood stained. Although, it is alleged by the prosecution that the subject Scorpio Car belonged to Rambabu; but, indisputably, neither its registration certificate was produced nor, any other evidence was led to substantiate the allegation. In this regard, the learned trial court has erred in holding that the subject Scorpio Car was registered in the name of the appellant-Rambabu Sharma and the defence did not lead any evidence to demonstrate that it was registered in the name of anybody else so as to draw an inference that it was not registered in the name of Rambabu Sharma. In our considered view, it was a totally misconceived approach and the burden of proof that the subject vehicle belonged to somebody else and not to the appellant, could not have been shifted upon him unless the prosecution was able to discharge its initial burden to show registration of the subject vehicle in the name of Rambabu Sharma by production of its registration certificate or other cogent evidence. [2026:RJ-JP:1001-DB] (43 of 52) [CRLAD-131/2021] Further, the written report (Ex.P55) does not reflect registration no. of the Car. The Car is recovered vide Ex.P4 dated 05.03.2017 on the disclosure statement made by the appellant Mahaveer (Ex.P3) even dated. The place of recovery is shown to be the residence of Smt. Lali Devi-sister of the appellant- Mahaveer; but, the prosecution did not lead any evidence to demonstrate that she was, as a matter of fact, the sister of Mahaveer. The remaining evidence connecting the Scorpio Car with the offence alleged is the inspection report of Mobile Forensic Unit, Jaipur (Ex.P37), the photographs (Ex.P39 to Ex.P42 & Ex.P46 to Ex.P51) and the State Forensic Science Reports Ex.P98 and Ex.P99. So far as the report (Ex.P37) is concerned, it was prepared on 19.04.2017 based on the inspections conducted on 28.02.2017 and 07.03.2017. It is supported only by the photographs (Ex.P38 to Ex.P51). It does not reflect as to whether any notes were taken either on 28.02.2017 or 07.03.2017 based whereupon, it was prepared. Although, Shri Sushil Kumar Banerjee (PW11), who has authored it, has stated during his cross-examination that he took notes on 28.02.2017 as also on 07.03.2017; but, neither the same are part of the report (Ex.P37) nor, the report reflects that it is based on such notes. It raises a serious doubt as to its veracity. So far as photographs are concerned, indisputably, these are in nature of secondary electronic evidence; but, were not accompanied with a certificate issued by the competent authority under Section 65B of the Evidence Act, in absence whereof, the [2026:RJ-JP:1001-DB] (44 of 52) [CRLAD-131/2021] same were of no evidentiary value and could not have been relied upon by the learned trial court. Similarly, the FSL report (Ex.P98) is also of no help to the prosecution case for the reason that it was based on tyre-trade impressions marked B, D, F and H in the image files which indisputably, were contained in the compact disc which, being the secondary electronic evidence, was inadmissible in evidence in absence of the Section 65B certificate. Further, although, in the inspection report (Ex.P37), it is shown that in front left side of the Scorpio Car, on the mating and on the driver side, on the seat along with handle human blood was found which was also found on the left side of back of front left seat and on left side of rear seat. The human blood was also detected on rear tyre of right side as well as on mud flap and fender line. However, the seizure memo (Ex.P4) prepared on 05.03.2017 shows blood stains only on front left seat. However, the prosecution did not explain the aforesaid discrepancy. As per Shri Sushil Kumar Banerjee (PW11)-the Senior Scientist-In-charge Mobile Forensic Unit, Jaipur, while preparing the inspection report of the Scorpio Car, no blood was collected from it; but, in the Forensic Science Laboratory Report (Ex.P99), human blood was detected in it with inconclusive blood grouping. Shri Naresh Kumar (PW6) who has taken the subject car from the place of recovery to the Police Station, has stated during his cross- examination that the car was parked in the Police Station in an unsealed condition and there was no restriction for anybody to visit the Police Station. The FSL report (Ex.P99) also reflects that the car was received in the unsealed condition and it also does not [2026:RJ-JP:1001-DB] (45 of 52) [CRLAD-131/2021] disclose from which part of the car, the blood sample was collected. Even otherwise, the Hon’ble Apex Court has in the case of Raju Naykar (supra) held that if blood grouping is inconclusive, mere presence of human blood on the subject article is of no assistance to the prosecution. In the aforesaid context, we are not convinced that the prosecution has been able to establish beyond reasonable doubt that the subject Scorpio Car was used by the appellants in commission of the offence. In so far as the submission of learned counsel for the appellants, based on Ex.D12-the daily newspaper (Rajasthan Patrika) dated 02.03.2017, is concerned, we are not persuaded to record a finding that the subject Scorpio Car was seized prior to 02.03.2017. Firstly, we find substantial force in the submission of the learned counsel for the complainant that the newspaper report cannot be relied upon as the primary evidence. In the case of Laxmi Raj Shetty (supra), their Lordships have held as under: “25. As to the first, the accused Laxmi Raj Shetty was entitled to tender the newspaper report from the Indian Express of the 29th and the regional newspapers of the 30th along with his statement under Section 313 of the Code of Criminal Procedure, 1973. Both the accused at the stage of their defence in denial of the charge had summoned the editors of Tamil dailies Malai Murasu and Makkal Kural and the news reporters of the Indian Express and Dina Thanthi to prove the contents of the facts stated in the news item but they dispensed with their examination on the date fixed for the defence evidence. We cannot take judicial notice of the facts stated in a news item being in the nature of [2026:RJ-JP:1001-DB] (46 of 52) [CRLAD-131/2021] hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. In the backdrop of the aforesaid precedential law, on the basis of newspaper report dated 02.03.2017, it cannot be held that the subject car was recovered before 02.03.2017. Secondly, even otherwise, the newspaper report reflects neither make of the car or its registration number. The learned trial court has further erred in taking the prosecution story as to use of a Swift Dzire Car by the appellants after leaving the Scorpio Car, on its face value without appreciating that there was no corroborative evidence on record to support this. Further, the Investigating Officer (PW32) has also admitted that no evidence was available on record to support the story that after leaving the Scorpio Car, the appellants have used the Swift Dzire Car. In this regard, the learned trial court has treated the police statement (Ex.P36) of Shri Vishnu Vijay as the substantive piece of evidence and did not take into consideration that he, as PW10, has turned hostile and has, in his cross- examination by the Additional Public Prosecutor, denied the relevant part of the Ex.P36. Their Lordships have, in the case of Rishi Nandan Pandit (supra), proceeded to hold as under: [2026:RJ-JP:1001-DB] (47 of 52) [CRLAD-131/2021] “Apparently a serious error has been committed by the learned Single Judge which looms large in the aforesaid passage. He took into account a set of legally forbidden materials in reaching the conclusion. It is trite that whatever a witness had stated to the investigating officer can not be used as evidence. Section 162 of the Code of Criminal Procedure, which incorporated the aforesaid prohibition, permits such statements to be used only for the limited purpose of contradicting the witness in certain circumstances.” Apparently, the aforesaid judgement squarely covers the issue involved herein and the finding of the learned trial court, based on the police statement of PW10, deserves to be rejected. From the conspectus of the aforesaid analysis, this Court is not satisfied at all that the prosecution has been able to establish that a conspiracy was hatched by the appellants to eliminate the deceased. What constitutes criminal conspiracy, has succinctly been laid down by the Hon’ble Supreme Court in the case of Ram Sharan Chaturvedi (supra) as under: “22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr. (2000) 8 SCC 203, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation: “12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...A few bits [2026:RJ-JP:1001-DB] (48 of 52) [CRLAD-131/2021] here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy... 13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient...” (emphasis supplied) 23. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common design with A-1 and A-2. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600, this Court held: “101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.” (emphasis supplied) In the case of K.R. Purushottam (supra), it was held as under: “To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of [2026:RJ-JP:1001-DB] (49 of 52) [CRLAD-131/2021] conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine quo non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement. The suspicion can not take the place of a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more [2026:RJ-JP:1001-DB] (50 of 52) [CRLAD-131/2021] persons to commit an offence. It is held in Noor Mohd. v. State of Maharashtra, AIR (1971) SC 885, that: ". in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors constitute relevant material." It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of-course, each one of the circumstance should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkaratama Reddy J. in State (NCT of Delhi) vs. Navjot Sandhu (a) Afsan Guru, JT (2005) 7 SC 1, (P. 63) as follows: "We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirator cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefore are governed by statute. The offencer will be liable only if he comes within the plain terms of the penal statute. Criminal [2026:RJ-JP:1001-DB] (51 of 52) [CRLAD-131/2021] liability for an offence cannot be fastened by way of analogy or by extension of a common law principle." In the backdrop of aforesaid precedential law, we have no hesitation in holding that the prosecution has miserably failed to substantiate the theory of conspiracy by leading cogent evidence and conviction of the appellants, based upon it, is not sustainable in the eye of law. Accordingly, the appeals preferred by the appellants are allowed, the judgement impugned dated 07.09.2021 passed by the Additional Sessions Judge No.10, Jaipur Metropolitan-I, (Headquarters Sanganer) is quashed and set aside and the appellants are acquitted from the charges levelled against them. The sentence of appellants-Mangal Pandit @ Mangal Pandey, Mahaveer Sharma, Mahesh Kumar Meena, Ram Kishor and Prince Kumar has already been suspended, therefore, their bail bonds are discharged. They need not surrender and shall be at liberty. The appellant-Rambabu is in jail. He shall be released forthwith, if not required to be detained in any other case. In view of the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellants are directed to furnish a personal bond in the sum of ₹25,000/- each, and a surety in the like amount before the Registrar (Judicial) of this Court which shall be effective for a period of six months with the stipulation that in the event of Special Leave Petition being filed against the judgment or on grant of leave, the appellants [2026:RJ-JP:1001-DB] (52 of 52) [CRLAD-131/2021] aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. (CHANDRA PRAKASH SHRIMALI),J (MAHENDAR KUMAR GOYAL),J RS