JUDGMENT Bhawani Singh, J.—The appellant, Jaswant Singh, aged 19 years, feels aggrieved and, therefore, challenges the judgment of Sessions Judge, Hamirpur (as Additional Sessions Judge for Simla Division) convicting the appellant under sections 302/404 of the Indian Penal Code and sentencing him to imprisonment for life and a fine of Rs 1,000 and in default of the payment of fine, to undergo further rigorous imprisonment for six months, by judgment dated 21-124985 in Sessions Case No. 28-B/7 of 1985/4-Bof 1985. 2. The prosecution case, to put it briefly, is that one Jagdish Chand reported at Police Post, Barmana, on 28-4-1985 at 8.30 a. m. that the dead body of Shri Bhup Singh, a shopkeeper of Barmana, was noticed by Shri Piar Singh who informed him of the same. Upon this, he states, that the place was visited by him alongwith Shri Piar Singh and Des Raj. Head injuries on the body of Shri Bhup Singh were found and that after that he came to the police post to lodge the report. The informer further reported that he suspected the appellant for the commission of the crime as he was seen moving with one another person around Barmana although he had completed his contract work and had left Barmana about 2 or 2-1/2 months back. On his own inquiry, it was found that the appellant had entered into a sale transaction with another contractor Shri Faquir Chand, about four months back, for the purchase of scooter No. HPA-5999 and advance on behalf of Jaswant Singh was paid by deceased Bhup Singh and it was agreed at that time that the scqpter will be retained by Bhup Singh till Jaswant Singh paid the entire sale consideration. Jaswant Singh also owed some money to Bhup Singh. Jaswant Singh failed to pay the sale amount as well as the amount due to Bhup Singh with the result that inimical relations developed between Bhup Singh and Jaswant Singh. The matter was investigated and challan under sections 302/404 read with section 34 of the Indian Penal Code was filed against the appellant and Ramesh Kumar only and the third accused, Beeru alias Beer Bhan, S/o Shri Chhankanda Ram, Caste Arora, R/o H. No. 1134, Mohalla Jatwara Lal Darwaja, Loharwali Galli, P. S. and Tehsil and District Sonepat, Haryana, was declared a proclaimed offender. The prosecution examined a number of witnesses and the appellant did not lead any defence The ,result was that the appellant was convicted, as aforesaid, whereas Ramesh Kumar was acquitted. No appeal against the acquittal of Ramesh Kumar has been filed by the State of Himachal Pradesh. 3. During the course of trial, the endeavour of the prosecution had been to prove that the motive on the part of the appellant to do away with the deceased Bhup Singh was not only the refusal to hand-over the scooter, No. HPA-5999, in accordance with the agreement dated 4-2-1985 between the appellant and Faquir Chand, contractor, (PW 17) but also the demand of his outstanding dues to the extent of Rs. 1100/1200. This created disaffection between them and, therefore, the appellant came to Barmana alongwith two others, namely, Ramesh Kumar and Biru alias Beer Bhan, purchased liquor from a local vend and went to the side through which the deceased used to go to his village Salnoo. They sat on a parapet, consumed liquor, and killed the deceased near the Dabar Nallah at Bahl where his body was ultimately found lying. 4. The appellant, it is averred by the prosecution, left his shirt on the parapet, came to his brother Raj Kumar (PW 10), purchased his shirt and left Barmana by a truck during the night and was ultimately arrested in Sonepat by the police on 30-4-1985- In order to appreciate the case, it is essential to examine the statements of the witnesses which are material in this respect. Although the State has not preferred any appeal against the acquittal of Ramesh Kumar, however, in order to see the application of section 34 of the Indian Penal Code including Ramesh Kumar and Biru alias Bir Bhan into the prosecution story, it is worthwhile to look into the facts alleged against him and their impact on the appellant. 5. It is worthwhile to take the case of Ramesh Kumar first and examine whether the prosecution has succeeded, in accordance with law, to prove the case against him. 6. Ramesh Kumar, in his statement under section 313 of the Code of Criminal Procedure, has stated that he was employed at Jipsi Hut, Barmana, during April, 1985. 5. It is worthwhile to take the case of Ramesh Kumar first and examine whether the prosecution has succeeded, in accordance with law, to prove the case against him. 6. Ramesh Kumar, in his statement under section 313 of the Code of Criminal Procedure, has stated that he was employed at Jipsi Hut, Barmana, during April, 1985. He has denied that night the company of Jaswant Singh, appellant, on 27-4-1985 at 7 30 P. M. at Barmana near Pump House as stated by Mohinder Singh (PW 4). He has also denied his presence with the appellant at 8 P. M. near water supply pipe. He has further denied his stay at the hotel of Vijay Kumar in Diara Sector, Bilaspur, on 27-4-1985 between 10 P. M. and 6 A.M. The prosecution, on the other hand, has attempted to prove the presence of Ramesh Kumar mainly through the statements of Mohinder Singh (PW 4), Bishan Dass (PW 5} and Vijay Kumar (PW 20). 7. Shri Mohinder Singh (PW 4) has stated that he saw appellant Jaswant Singh, accompanied by two other persons, near the factory premises near Pump House and on the second occasion, the appellant was accompanied by another accused, who was present in the court. In cross-examination, he states that he had not given the name of the other accused nor he was known to him. He has not disclosed his name as Ramesh Kumar, earlier working in the factory Guest House at Barmana. Here this witness has contradicted his statement earlier given to the police where he had specifically mentioned the name of Ramesh Kumar working previously in the Guest House of the A. C. C. Factory, Barmana. 8. This statement cannot be relied upon. This witness does not know accused Ramesh Kumar for the period earlier to 27-4-1985 and, it appears, that he came to know about him during the investigation of the case or for the first time when he was being examined in the court. It can, therefore, be safely concluded that his statement recorded under section 161 of the Code of Criminal Procedure by the police was not, at all, correct. 9. It can, therefore, be safely concluded that his statement recorded under section 161 of the Code of Criminal Procedure by the police was not, at all, correct. 9. Bishan Dass (PW 5) has said that he found three persons sitting near water supply pipe while he was returning to his village at about 8 P.M. He identified two of them, appellant Jaswant Singh, working as a contractor and accused Ramesh Kumar, working in the Guest House of the factory, but this witness has not supported his statement earlier recorded under. section 161 of the Code of Criminal Procedure wherein it was not so recorded. Again, no credence can be placed on the testimony of this witness. He has contradicted himself on a material point, which is in issue. Secondly, he seems to have been picked up by the police to be a witness simply because his shop is in front of the police post. His statement, if read as a whole, is thoroughly contradictory, incoherent and worthless. 10. Vijay Kumar (PW 20) has simply stated that one Ramesh Kumar had stayed in his hotel for the night of April 27, 1985 and entry to that effect in the register of the hotel was at SI. No 339. He was accompanied by one more person. He came at 10 P. M. and left in the morning at 6 A. M. He could not identify the person who stayed in his hotel for this night and the register was signed by Ramesh Kumar. This evidence does not prove anything. The entry signed by Ramesh Kumar could be proved had the prosecution made any serious effort to get it verified from the Examiner of Questioned Documents; but nothing has been done. 11. Both Mohinder Singh (PW 4) as well as Bishan Dass (PW 5), have stated that the accused Ramesh Kumar was working in the Guest House of the factory which fact could be easily proved by summoning of some officer from the factory but the prosecution has failed to do so. Under these circumstances, the only conclusion which can be drawn is that the prosecution has completely failed to prove the presence of accused Ramesh Kumar either at Barmana or during the commission of the offence. He has been made an accused simply because of the chit Ex. P-12 found in the pocket of Shirt Ex. P-7. Under these circumstances, the only conclusion which can be drawn is that the prosecution has completely failed to prove the presence of accused Ramesh Kumar either at Barmana or during the commission of the offence. He has been made an accused simply because of the chit Ex. P-12 found in the pocket of Shirt Ex. P-7. The finding of this chit in the shirt Ex. P-7 is thoroughly unbelievable for the reasons being recorded while discussing the case of appellant Jaswant Singh. At this stage, it is quite enough to say that there is no evidence on the record to show that accused Ramesh Kumar and the appellant had been either living together or had been friends or were otherwise known to each other. The finding of acquittal recorded by the learned Sessions Judge qua accused Ramesh Kumar is, therefore, correct. Now, the case of Jaswant Singh is examined keeping in view the above facts in mind which relate to and touch upon the facts against Jaswant Singh. Jaswant Singh 12. Shri Jagdish Chand (PW 1) belongs to village Salnoo He has a shop at Barmana (Barmana is a developing town due to the establishment of a cement plant). He states that he knew the deceased Bhup Singh. He was informed on 28-4-1985 at 7.30 a.m. by Piar Singh (PW 9) that the dead body of the deceased was lying near the Dabar Nallah at Bahl. He went there alongwith Des Raj (PW 6) and Piar Singh (PW 9). He reported the matter at the police post Barmana. His suspicion was on the appellant and his associates. He accompanied the police to the spot and joined in the investigation of the case. He is a witness to the Inquest Report Ex. PA and a number of recoveries made by the police like; blood stained stone weighing about 1-1/2 kg. with human hair sticking to it, one Chowk black hair, found lying near the dead body, 3-4 small stones lying near the head of the deceased, blood stained earth from near the dead body, cycle lying at a distance of 300 to 400 yards and shirt Ex. P-7 lying on the parapet, a purse containing currency notes of Rs. 5 and Rs. P-7 lying on the parapet, a purse containing currency notes of Rs. 5 and Rs. 2 denomination, one photograph of the appellant and one slip bearing address of Ramesh Kumar, one plastic mug, one glass tumbler, one broken bottle and some quantity of ‘namkeeri’, one bamboo danda, vest lying on the road at a distance of 10-15 feet from the parapet, a golden ring from near the dead-body, one bundle of beedi, keys, match-box and comb, currency notes of Rs 60 (Ex. P-23 of Rs. 50 and Ex. P-24 of Rs. 10) which were taken into possession vide Memo Ex. PM. 13. In cross-examination, this witness initially denied that he as well as the deceased were dealing in the sale of illicit liquor but soon after admits that they were challaned for the sale of illicit liquor and that his excise case was still pending before the Chief Judicial Magistrate. He also admits that he was convicted earlier for the excise offence but denies his competition with the deceased in the sale of illicit-liquor and that due to this rivalry he had earlier tried to kill Bhup Singh. He denies that the deceased had ever, in the past, reported to the Panchayat as well as to the police against him about some apprehended danger from him. He admits that a number of persons are either working in the A. C. C. factory or carrying on business at Barmana from his village Salnoo. He denies the suggestion that the recovery of articles was made actually on April 30, 1985 and they were being shown to have been recovered on April 28, 1985. He further states that Raj Kumar (PW 10), brother of the appellant, had handed over Rs. 60 at police post Barmana on April 28, 1985 but at what time, he does not remember. He states that the deceased used to close his shop at about 8 p, m. whereas he used to do so by 9 or 10 p. m. but he denies having any knowledge as to the closing of the shop by the deceased on April 27, 1985 as well as the fact whether the deceased was accompanied by any person on his way to his village. He states that the shirt was visible to the naked eye during the day time and was lying open on the parapet but says that he could not say as to how many persons had seen the cycle or the shirt before him. He states that the police took 4-5 hours in effecting recoveries and doing other formalities at the spot. Initially the stones were taken into possession followed by photographs. The shirt was taken into possession thereafter. Slip Ex. P-12 (on which the name of Ramesh Kumar was written) was not separately packed and sealed. The documents were prepared after the arrival of S. H. O. Birbal Ram (PW 36). He denies the suggestion that shirt Ex P-7, containing purse, slip etc., was not recovered from the road side. 14. He admits that his shop is in front of police post Barmana and that the distance between Barmana and Bilaspur can be covered in 45 minutes by bus. 15. This witness is of the village of the deceased. He is involved in shady deals like sale of illicit liquor with excise case(s) still pending against him in the court of law. His shop is in front of the police post. These facts are enough not only to discredit him but also his testimony. Further, he has not said as to how he has suspected the appellant along-with his associates to have committed the offence, He neither elaborated it nor said anything about the transaction of the sale of the scooter. He has not elaborated as to how and what sort of personal inquiry he made as to the cause of the murder of the deceased. Why should these witness, Des Raj (PW 6) and Piar Singh (PW 9) go to the spot instead of reporting the matter to the police. As a matter of fact, they alongwith Dile Ram (PW 3) set up the story of scooter transaction, went to the police station with this story and the police, without bothering to find out the real cause and the culprit, moved to investigate this case on this basis as it got a readymade story and witnesses to support. However, this witness casts complete doubt on the proceedings of the investigating officer when he says that his signatures were obtained at the police station. However, this witness casts complete doubt on the proceedings of the investigating officer when he says that his signatures were obtained at the police station. It appears certain that he is trying to save his own skin and in this effort he was picked up as an important witness by the police. 16. Shri Dile Ram (PW 3) also belongs to village Salnoo. He reaches the spot alongwith Shri Mohinder Singh (PW 14) at about 10 or 10.30 a. m. ; when the police had already reached there. He is also a witness to the inquest report and other recoveries with Jagdish Chand (PW 1) He denies that Jagdish Chand (PW 1) and the deceased were ever dealing in illicit distillation and that the deceased used to remain, under the influence of liquor all the time and pick up quarrels with the villagers under the influence of liquor and that on the night of April 27, 1985, he had consumed liquor with the deceased in the company of Jagdish Chand (PW 1) during which time there was any exchange of hot words between them and the matter was reported to the Panchayat as well as to the police. He also denies that the police suspected him as well as Jagdish Chand (PW 1) for the murder of Bhup Singh, deceased. He also denies that the articles were recovered on April 30, 1985 and memos of recoveries were also prepared on the same day and were pre-dated by the police and that they were planted by the police and he was made a witness, being a suspect. He admits that the shirt Ex. P-7 was recovered at the end. He states slip Ex. P-12 was separately packed and sealed. This witness also belongs to the village of the deceased. He does not state anything material as his information is primarily through Shri Jagdish Chand (PW 1) Moreover, his effort is to save Jagdish Chand (PW 1) as well as himself. No credence can, therefore, be placed on his testimony. 17. Shri Mohinder Singh (PW 4) of village Salnoo states that he knew the appellant. The appellant, he states, had visited the house of Bhup Singh in connection with the scooter. No credence can, therefore, be placed on his testimony. 17. Shri Mohinder Singh (PW 4) of village Salnoo states that he knew the appellant. The appellant, he states, had visited the house of Bhup Singh in connection with the scooter. However, he was seen by him with one another person, not present in the Court, in the earlier part of the day, then he saw the appellant with two persons at about 7 or 7.30 p. m. when he was going to his village. At that time the appellant, with two persons, met him near the factory premises near the pump house. He states that the transaction relating to the sale of scooter took place at Barmana and the agreement was prepared on a stamp-paper. The appellant was wearing shirt Ex. P-7 at the time he had seen him on April 27, 1985 and told the police, at the time the shirt was being taken into possession, that the appellant was wearing this shirt on the previous day as the same was seen by him. In his cross-examination, he states that he had not given the name of the other accused nor he was known to him having once worked in the factory Guest House at Barmana. He has resiled from his statement ; once given to the police under section 161 of the Code of Criminal Procedure, where he had not said that the appellant was wearing shirt Ex. P-7. So makes an improvement in his deposition on a material point on the case. He denies the suggestion that the deceased was dealing in illicit distillation and that he used to be under the influence of liquor and pick up quarrels during that time. He also denies that Jagdish Chand (PW1) and Dile Ram (PW 3) were suspected by the police in this case. In cross-examination he denies about the transaction of scooter having taken place in his presence although Bhup Singh was having a stamp-paper and was saying that some transaction about the sale of scooter was likely to take place between the appellant and another contractor. He denies any other talk regarding payment of sale consideration of the scooter in his presence and also the fact that he had informed the police about the payment of Rs. 4,200 by the appellant and thereby contradicts his earlier statement under section 161 of the Code of Criminal Procedure. He denies any other talk regarding payment of sale consideration of the scooter in his presence and also the fact that he had informed the police about the payment of Rs. 4,200 by the appellant and thereby contradicts his earlier statement under section 161 of the Code of Criminal Procedure. He is not aware of any amount of Rs. 1100-120C required to be paid by the appellant to deceased Bhup Singh and thereby again contradicts his earlier statement under section 161 of the Code of Criminal Procedure where he had said so and maintains that the police had incorrectly recorded his statement. He states that the police had obtained the signatures of this witness Dile Ram (PW 3) and Jagdish Chand (PW 1) on the proceedings. He admits that the deceased was from his community and his village. 18. The statement of this witness suffers from a number of infirmities He belongs to the village of the deceased, from his Bradari and community" Although the transaction of the scooter did not take place in his presence still, he comes forward to depose about a fact which did not at all exist The same is relating to the execution of the sale agreement on a stamp-paper and holding of the same by the deceased. This is not the case of the prosecution nor has it been stated by any one. He contradicts again as having said once under section 161 of the Code of Criminal Procedure that the appellant was to pay the deceased Rs. 1100-1200. His statement about the shirt Ex. P-7 does not inspire confidence as no one can remember the colours so minutely when the shirt was lying on the parapet on the one side of the road in a jumbled-up form and there is no evidence that this witness went to see the shirt and saw it very minutely. Further there was no reason for him to tell the police that the appellant was wearing shirt Ex. P-7 on that day. Therefore, no reliance can be placed on the testimony of this witness. Further there was no reason for him to tell the police that the appellant was wearing shirt Ex. P-7 on that day. Therefore, no reliance can be placed on the testimony of this witness. 19- Shri Bishan Das (PW 5) states that he found three persons sitting near the water supply pipe while returning to his village at about 8pm He identifies two of them, then present in the Court, namely, the appellant-contractor, and Ramesh Chand working in the Guest House of the factory which is valueless in the absence of identification prade. He states that the appellant had talked to him and on the next morning at 7 a. m while coming from his village to Barmana, he found one cycle, one shirt on the parapet, one glass and some namkeen’ at Dabar Nallah on the road He states that he had disclosed to the police that accused Ramesh Chand was accompanying the appellant when he saw three persons sitting there but it did not record it He admits that his shop is in front of police post Barmana. He admits that 100 to 150 persons come from village Salnoo Khangar to the factory and shops at Barmana. Picking up of these witnesses strengthens the fact that only those persons have been picked no as witnesses by the police who were interested or had some axe to grind in the matter. He admits that the appellant was suspected on account of the shirt Ex. P-7. He denies that the deceased and Jagdish Chand (PW 1) were dealing in illicit liquor and were challaned for excise offences He also admits that Bhup Singh used to remain under the influence of liquor and quarrel with others. He also admits that the deceased used to return late to his village on account of the construction work of his house at Barmana. He admits that he talked only to the appellant and did not notice as to what clothes the persons accompanying him were wearing as it was dark. 20. The version given by this witness also is unbelievable. He appears to be particular only about the appellant and does not notice other two persons accompanying him. It is very strange that he remembers only the shirt Ex. P-7 of the appellant and does not know anything about others. 20. The version given by this witness also is unbelievable. He appears to be particular only about the appellant and does not notice other two persons accompanying him. It is very strange that he remembers only the shirt Ex. P-7 of the appellant and does not know anything about others. His evidence rather indicates that the appellant was wearing the shirt and he was not sitting naked. He is the only witness who states that the cycle and shirt were lying on the parapet and, therefore, contradicts all other witnesses not only on this bat also about the placement of glass and Namkeen. He has also made improvements in his statement. He cannot be believed because he states that Ramesh Chand accused was one of the three persons sitting there. The presence of Ramesh Chand has been completely excluded, so his version on this aspect cannot, at all, be believed. He also appears to have been picked up by the police as a witness in the case simply because he is a stock witness having his shop in front of the police post. Further, his evidence has the tendency to exaggerate normal facts and deny even those which are otherwise admitted even by the witnesses to whom they relate For example, involvement of the deceased and Jagdish Chand (PW 1) in illicit distillation and involvement in excise cases It appears that this witness did not see anything in this case. 21. Next comes Des Raj (PW 6) who simply says that after 3/4 days of the transaction of the scooter, the appellant demanded the scooter from Bhup Singh who asked him to pay Rs. 1,200 whereupon the appellant said that he (appellant) would see him. This witness is working as a Munshi (clerk) with Shri Faquir Chand contractor (PW 17) with whom the transaction of scooter had taken place. Being an interested witness, no reliance can be placed on what he has said. 22. Jodh Singh (PW 7) is the Junior Engineer of the Public Works Department and posted at Barmana; can be called an independent witness He has prepared the site plan. He describes that there were some pieces of shirt and waist lying near the cycle. There were also broken pieces of bottle. Nothing else, he states, was lying at the spot shown to him. He describes that there were some pieces of shirt and waist lying near the cycle. There were also broken pieces of bottle. Nothing else, he states, was lying at the spot shown to him. He prepared the site plan on April 28, 1985 after 2 p. m. His statement discloses a very strange situation and indicates that many of the things, including shirt Ex P-7, had been planted by the police and the recoveries were accordingly made. Which shirt pieces are these? To whom those belong? Has the prosecution excluded these pieces of shirt from those of the victim and the assailants? The problem arises both with respect to the availability of vest and the cycle and the non-availability of other articles recovered by the police vide number of recovery memos. The statement of this witness not only demolishes the case of the prosecution completely but also shows further that the investigation has not, at all, been fair. 23. Shri Piar Singh (PW 9) is unworthy of credence. He states that Raj Kumar (PW 10), brother of the appellant, stayed in his house for a month. On 27-4-1985 at about 9-10 p. m, the appellant came to meet Raj Kumar. At that time he was wearing only Pent or Pyjama and was naked from the upper portion. On inquiry, he not only showed him the house of Raj Kumar but also took him to his house and that he noticed injury on the left side of the afore head of the appellant. He admits that the house of Raj Kumar was separate and 4 metres away from the house occupied by him and he had himself gone to the police and was not summoned by it. Can it be believed? Certainly not. 24. This witness does not seem to have seen the appellant at all Had he seen him, he could very easily see whether the appellant was wearing a Pent or Pyjama ; there being a fundamental difference between Pent and Pyjama. There was no reason for the appellant to have asked him about the house of Raj Kumar (PW 10) as the same could be otherwise known to the appellant. Raj Kumar was his brother and the appellant had worked at Barmana as contractor also. Raj Kumar (PW 10) has denied that he ever lived in this house. There was no reason for the appellant to have asked him about the house of Raj Kumar (PW 10) as the same could be otherwise known to the appellant. Raj Kumar was his brother and the appellant had worked at Barmana as contractor also. Raj Kumar (PW 10) has denied that he ever lived in this house. It appears certain that the police has set up this witness simply to prove the factum of Pyjama, worn by the appellant at that time, which was subsequently recovered from the house in Sonepat and the fact that the shirt left at the parapet was of the appellant and he was naked when he came back to the house of his brother where he got another shirt from his brother on payment of Rs. 60. 25. Shri Raj Kumar (PW 10) is the brother of the appellant. He denies, as said above, that he was ever the tenant of Piar Singh (PW 9). He states that the appellant had not met him for the last 8-9 months. Having departed from his version given to the police under section 161 of the Code of Criminal Procedure, he has been declared hostile and, therefore, on cross-examination by the prosecution he denies having any knowledge regarding the scooter sale and also that the appellant had visited him on 27-4-1985 when he was not wearing any shirt. He also denies that the appellant took his shirt and that the appellant paid him Rs. 60 on account of price of the shirt as he had refused to part with it. He states that he handed over Rs. 60 to the police as this sum was demanded by them. He denies that the appellant was having injury on his forehead at that time. He states that he was detained by the police alongwith his wife. While he was kept in the police station for the night, his wife was taken by the police to Sonepat He emphatically states that he was forced to pay Rs. 60 at the police station on 4-5-1985 after his brother, the appellant, was brought by the police on 30-4-1985. 26. Simply because this witness has been declared hostile, his testimony cannot be brushed aside on that account. There are certain basic and material points in his statement which are quite natural, straightforward and truthful. 60 at the police station on 4-5-1985 after his brother, the appellant, was brought by the police on 30-4-1985. 26. Simply because this witness has been declared hostile, his testimony cannot be brushed aside on that account. There are certain basic and material points in his statement which are quite natural, straightforward and truthful. For example, his denial that he was the tenant of Piar Singh (PW 9). This could be proved by the prosecution by some reliable evidence which it did not do. So, his version has to be admitted and when so admitted, the statement of Piar Singh (PW 9) cannot be believed. He is the real brother of the appellant. Therefore, he could naturally know the scooter transaction and more particularly as to the payment of Rs. 2,000 by Bhup Singh on behalf of the appellant to Faquir Chand. The payment of this amount of Rs. 2,000 towards the scooter transaction appears to be fake as will be discussed later. Further, his statement is quite natural and correct when he denies having been paid Rs. 60 on account of the price of his shirt taken by the appellant. Why should Rajkumar (PW 10) charge Rs. 60 as the price of shirt from his brother ? Is it natural or possible ? Certainly not. Moreover, can a shirt be purchased for Rs. 60 these days ? It cannot be. This prosecution story is thoroughly unbelievable, it is simply an effort on the part of the prosecution to make a complete chain of circumstantial evidence to prove the case but the chain can neither be made nor completed by including unbelievable, improbable, unrealistic and abnormal facts which do not pass the tests laid down in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 and various other judicial pronouncements. 27. Equally shocking is the statement of Shri Sher Singh (PW 11), set-up to prove the shirt, Ex. P-7, on the basis of which the appellant is being connected with the murder of Bhup Singh. This witness states that the shirt Ex. P-7 was stitched by him for the appellant on payment of Rs. 15. He states in cross-examination that he stitches 3 to 4 shirts per day, which means that he must have stitched roughly 400 shirts as there is no definite period from which to calculate the number. He must have stitched other garments as well. P-7 was stitched by him for the appellant on payment of Rs. 15. He states in cross-examination that he stitches 3 to 4 shirts per day, which means that he must have stitched roughly 400 shirts as there is no definite period from which to calculate the number. He must have stitched other garments as well. It appears, he gave his statement simply because of his trade mark and his version that he had said it because the appellant was his regular customer cannot be believed. His version cannot further be believed because the best evidence which could be produced on this aspect was not placed before the court by the production of the entry from the register where tailors note down the date, measurements as well as the names of the customers. Something could be said on this aspect had this shirt been stitched and handed over to the appellant on April 27, 1985 and thereafter found at the place alleged by the prosecution on April 28, 1985. There is no such evidence. There is no material significance of his statement in these circumstances. 28. Faquir Chand (PW 17) is the contractor at Barmana with whom the transaction for the sale of scooter took place. He states that the appellant agreed to pay Rs. 6,200 as the price of the scooter HPA 5999. He further states that the appellant paid him Rs, 2,000 which sum was, in fact, obtained from Bhup Singh deceased. He states that a cheque of Rs. 4,200 was also given to him by the appellant and that the agreement Ex. PT in writing was entered on 4-2-1985 and the cheque Ex. PT/1 for Rs. 4,200 was not encashed. He stated that the scooter was retained by Bhup Singh deceased to whom a cheque of Rs. 2,000 was also issued by the appellant and he was told subsequently by the deceased that the cheque issued in his favour by the appellant was encashed, however, the scooter was not given by him to the appellant as he (appellant) owed him (Bhup Singh deceased) Rs. 1,100/1,200. The scooter, he states, was handed over back to him by Bhup Singh on 1-4-1985. He admits that the deceased had not encashed the cheque of Rs. 2,000 in his presence. On Court question, he admitted that he had not repaid Rs. 1,100/1,200. The scooter, he states, was handed over back to him by Bhup Singh on 1-4-1985. He admits that the deceased had not encashed the cheque of Rs. 2,000 in his presence. On Court question, he admitted that he had not repaid Rs. 2,000 either to Bhup Singh or to the appellant after receiving back the scooter. 29. It is clear from the statement of Faquir Chand (PW 17) that scooter transaction, in fact, took place which is admitted by the appellant also. What is in doubt is whether actually the amount of Rs. 2,000 was paid by the deceased Bhup Singh to Faquir Chand (PW 17) and whether a cheque for Rs. 2,000 was issue 1 by the appellant in favour of Bhup Singh deceased. There appears to be no clear evidence on this aspect of the case although material to throw light on the motive part of the case has been attempted to be placed by the prosecution. The appellant has denied the fact of having issued any such cheque in favour of Bhup Singh deceased. The best evidence on this aspect could be easily ascertained, collected and placed on the record by the examination of Shri K. C. Kanthwal (PW 25), Branch Manager, State Bank of India, Slapper, to show in whose favour the cheque, in question, had been issued and who received the payment. Even otherwise, the scooter was to go back to the seller on 7-3-1985 as cheque of Rs. 4,200 could not be encashed for wants of funds which the appellant may have known even at the time of giving it. He may have expected credit to his account that is why he gave a post-dated cheque. When he knew that he had no money in the account and the cheque for Rs. 4,200 could not be encashed and that according to agreement, amount of Rs. 2,000 (even if admitted) stood forfeited on 7-3-1985, why should he have felt annoyed and gone to the extent of planning to kill the deceased. 30. Mangat Ram (PW 19), a Salesman in the liquor vend at Barmana, has stated that the appellant purchased one bottle of XXX-Rum for Rs. 40 on 24-4-1985 at 5.45 p.m. and after purchasing it, he went towards the labour colony. No inquiry about any person was made by the appellant from him. 30. Mangat Ram (PW 19), a Salesman in the liquor vend at Barmana, has stated that the appellant purchased one bottle of XXX-Rum for Rs. 40 on 24-4-1985 at 5.45 p.m. and after purchasing it, he went towards the labour colony. No inquiry about any person was made by the appellant from him. He states in the cross-examination, on being declared hostile, that the appellant was with two persons whose names he did not know but denies the suggestion that accused Ramesh Kumar was with the appellant at that time. He also denies having been asked by the appellant about the lime of departure of Bhup Singh and his mode of going to his village. He contradicts his statement on this aspect giving under section 161 of the Code of Criminal Procedure. Similarly, he contradicts his statement about the name of Jaswant Singh and stated that he saw Jaswant Singh for the first time. It is not possible for him to know the appellant as he started working at this vend only 2-3 days prior to the occurrence. Moreover, large number of customers visit vends daily and there was nothing peculiar with the appellant which could have been the reason to remember about him. 31. Vijay Kumar (PW 20) has been examined by the prosecution to establish that the appellant and Ramesh Kumar after the commission of the offence left Barmana and stayed in the hotel of this witness at Bilaspur on the night of April 27, 1985. This witness states that one Ramesh Kumar had stayed in his hotel on the night of April 27, 1985 and an entry to this effect was 339 in his register. He was accompanied by one more person. The time of arrival has been recorded 10 p.m. and the departure at 6 a.m. He further states that he cannot identify the persons who had stayed in the hotel on the night of April 27, 1985. The register was signed by Ramesh Kumar. 32. This witness has also demolished the case of the prosecution as the attempt on the part of the prosecution to cite him is to prove that after leaving Barmana after the commission of the offence, the appellant as well as Ramesh Kumar stayed in his hotel for the night. The register was signed by Ramesh Kumar. 32. This witness has also demolished the case of the prosecution as the attempt on the part of the prosecution to cite him is to prove that after leaving Barmana after the commission of the offence, the appellant as well as Ramesh Kumar stayed in his hotel for the night. But the prosecution has failed on this account as the identity of the appellant is not established and the time of arrival excludes the stay of the appellant and Ramesh Kumar in the hotel because it is in evidence that the distance between Barmana and Bilaspur can be covered in 45 minutes to one hour by bus and it has been specifically stated by Dina Nath (PW 23), the driver of the truck, that they left Barmana at about 10.30 p.m. and reached Bilaspur in the mid night. The evidence of the prosecution on this aspect of the case is thoroughly weak, incredible, inconsistent, unnatural and most unreliable and, therefore, cannot, at all, be believed and, the chain of the circumstantial evidence cannot be said to have been proved by the prosecution and it can be safely concluded that there is no evidence worth credence from the stage of the so-called movement of the appellant at Barmana on April 27, 1985 to his departure on April 28, 1985. 33. Going back to the scene of occurrence, the prosecution case is that the appellant was sitting there on the parapet alongwith two others. He was taking liquor purchased by him from the liquor vend on 27-4-1985 at 5.45 p.m. The prosecution has further attempted to show that it was during this time that the deceased, when passed that way, was killed by hitting on the head with stone Ex. PB which contains blood as well as hair of the deceased. It is also asserted by the prosecution that the appellant, Ramesh Kumar and Biru alias Bir Bhan had common intention to kill the deceased and, therefore, all the three are jointly liable for the murder. In other words, the submission is that the provisions of section 34 of the Indian Penal Code are applicable in the present case. Let this point be examined in the facts and circumstances of this case. 34. Section 34 of the Indian Penal Code does not create any specific offence. In other words, the submission is that the provisions of section 34 of the Indian Penal Code are applicable in the present case. Let this point be examined in the facts and circumstances of this case. 34. Section 34 of the Indian Penal Code does not create any specific offence. It is a principle of constructive liability and the essence of that liability is existence of common intention. It is only a rule of evidence and not a penal provision. It only gives statutory recognition to the common-sense principle that if two or more persons intentionally do a thing jointly, it is just the same thing as if each of them do it individually. There may be direct evidence of common intention where prearranged plan or pre-concert by the killers may be available but such cases are very rare and, therefore, the evidence of such prearranged plan has to be inferred from the act, conduct or relevant circumstances of the case. 35. In Pandurang and others v. State of Hyderabad, AIR 1955 SC 216, Bose, J., summarised the position as under: "Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all :—Lehbub Shah v. Emperor\ AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly, there must have been prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan." 36. Equally important are the observations in Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413, where K. Subba Rao, J., observed as follows:— "It is well settled that common intention within the meaning of the section implied a prearranged plan and the criminal act was done pursuant to the prearranged plan. The said plan may also develop on the spot during the course of the commission of the offence ; but the crucial circumstance is that the said plan must precede the act constituting the offence. The said plan may also develop on the spot during the course of the commission of the offence ; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under section 302 read with section 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence." 37. Shri M. G. Chitkara, learned Counsel for the appellant, submits that the provisions of section 34 of the Indian Penal Code are not, at all, applicable in the present case and it is rightly admitted by Shri M. C Mandhotra, learned Counsel appearing for the State, that the learned Sessions Judge has not examined the case in the light of the provisions of section 34 of the Indian Penal Code. Shri Chitkara states further that in case the application of section 34 is not proved, there is no other evidence to connect the appellant with the offence. On the other hand, Shri M. C. Mandhotra submitted that even if the presence of Ramesh Kumar is excluded, as held by the Sessions Judge, the appellant is liable for the commission of the offence by the application of section 34 as the third person, named Biru alias Bir Bhan, was there with the appellant. The attempt of the learned Counsel appears to be to assert that the appellant shared common intention with the third accused Biru alias Bir Bhan, who has been declared a proclaimed offender in the case, though Ramesh Kumar has been acquitted of the charge. Reference to Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC 51 and Sawal Das v. State of Bihar, AIR 1974 SC 778, is of no assistance to the learned Counsel as the facts in the present case are entirely different from those cases. Reference to Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC 51 and Sawal Das v. State of Bihar, AIR 1974 SC 778, is of no assistance to the learned Counsel as the facts in the present case are entirely different from those cases. It may be stated that the prosecution version is that the appellant was in the company of Ramesh Kumar and Biru alias Bir Bhan but there is no evidence whatsoever of any prior concert or a prearranged plan by the assailants, and the mere fact that all the accused were seen at the spot near about the time of incident, cannot be held sufficient to prove or even to infer a common intention or any concert amongst them. No evidence is there to show that it developed at the time of fighting itself as the presence of the appellant and Ramesh Kumar is excluded by the hair-test; it appears, the learned Sessions Judge, rightly and intentionally left the track of discussing the application of section 34 and moved on to fasten the liability individually on the appellant. The argument that even if Ramesh Kumar is acquitted, the appellant can be proceeded against with Biru alias Bir Bhan by application of section 34 of the Indian Penal Code, is not, at all, convincing. There is no evidence whatsoever to indicate that Biru alias Bir Bhan was actually the third person alongwith the appellant. No witness has named him in order to identify him anywhere at Barmana on and around April 27, 1985. Simply because he has been declared as proclaimed offender, his participation in the crime cannot, at all, be inferred. This excludes the application of section 34 of the Indian Penal Code to the facts of this case. 38. Now, coming to the appellant individually, there is no cogent, convincing and legal evidence to establish his presence at Barmana. Simply because he has been declared as proclaimed offender, his participation in the crime cannot, at all, be inferred. This excludes the application of section 34 of the Indian Penal Code to the facts of this case. 38. Now, coming to the appellant individually, there is no cogent, convincing and legal evidence to establish his presence at Barmana. Even if it is accepted that he was at Barmana, there is no convincing evidence as to the time he left Barmana to the place where he is alleged to have been seen with two others on a parapet- Barmana is a developing town with a gigantic cement plant established by A. C. C. A large number of people may be purchasing liquor from the only available liquor vend- So, to say that the appellant purchased liquor from that vend is practically of no significance as liquor may have been purchased by a large number of people and the time of purchase is stated to be at 5-45 p.m. The whereasabouts of the appellant, after 5.45 p.m. till his presence is shown at the spot, have not been shown. Further, coming to the spot, there is no evidence to show, as the prosecution has shown in the case of purchase of liquor, as to wherefrom the accused had taken other articles like plastic mug, ‘namkin’ etc. 39. The presence of torn pieces of shirt, as already observed above, and the vest, show that the killer is definitely someone other than the present appellant and his so-called associates. The presence of these articles at the spot show that the actual assailant had way-laid the deceased on the road, fought with him and killed the deceased, placed the body at the place where it was ultimately found. It was during this fight between the deceased and the assailant that his vest and shirt were torn. The prosecution has not investigated the case on this evidence; simply because it found that the investigation of the case against the appellant and his so-called associates was easy, certain prosecution witnesses having developed the story of motive based on the sale transaction of the scooter. The presence of shirt Ex. P-7, alleged to have belonged to the appellant, on the parapet, is planted one, because the only thing to connect the appellant with the commission of the offence is the shirt. The presence of shirt Ex. P-7, alleged to have belonged to the appellant, on the parapet, is planted one, because the only thing to connect the appellant with the commission of the offence is the shirt. As soon as it is excluded, the presence of the appellant at the spot, on the parapet, is eliminated and as soon as it happens, the story of the prosecution completely falls to the ground. It is thoroughly unbelievable that the appellant would put off his shirt, keep the same on the parapet, come to Barmana at a distance without any shirt and go to his brother and purchase a shirt. The reasonings and conclusions of the learned Sessions Judge in this respect are not convincing and against normal human behaviour. When tested on other aspect, it is impossible to believe that a person coming to kill a person will keep his shirt on the parapet with purse, currency notes, his own photograph and the address of his co-contractors to help the prosecution to lay its hands easily to catch him. Can such conduct and such a story be believed? Certainly not. In order to connect the appellant with the shirt, the police has further put up the story of chit Ex. P-12 and the photograph of the appellant. This is thoroughly the handy work of the investigating personnel in its zeal to see that the case does not fail on the point of the shirt in being connected with the appellant and the only method was the photograph. The handwriting in the chit Ex. P-12 has not been proved to be that of the appellant nor the purse and the contents thereof. Can it be imagined that the appellant, having come from Sonepat, had only Rs. 7 in his pocket, of Rs. 5 and Rs. 2 denominations? In order to succeed, the investigating agency went on adding things in order to avoid any risk in the investigation of the case. The investigating agency hoped that the appellant or Ramesh Kumar could be easily connected with the crime by the recovery of human hair at the spot. Could be, had they been connected with the appellant or Ramesh Kumar but luckily for the appellant, this attempt of the prosecution has failed. This fact also excludes the appellant as well as Ramesh Kumar having played any part in the commission of the crime. 40. Could be, had they been connected with the appellant or Ramesh Kumar but luckily for the appellant, this attempt of the prosecution has failed. This fact also excludes the appellant as well as Ramesh Kumar having played any part in the commission of the crime. 40. Shri Ram Lai (PW 21) is a contractor at Barmana A.CC. factory. He has been declared hostile. He states that he could not say since when the appellant had left Barmana, thereby resiling from his statement under section 161 of the Code of Criminal Procedure. He further denies that he had seen the appellant at Barmana Chowk with two persons on 27-4-1985 and also denies about any dispute between Bhup Singh and Jaswant Singh about the scooter. This witness, therefore, does not support the prosecution as to the presence of the appellant at Barmana on 27-4-1985. 41. Shri Samant Lal (PW 22) is the photographer. He states that the photographs were taken at about 11 a. m. and the articles of the dead-body were not disturbed for taking the photographs and the shirt Ex P-7 was not shifted before the close-up photograph of the same was taken. There is a material variation in the statement of this witness and that of Jodh Singh (PW 7) who states that the site plan was prepared after 2 p.m. His statement does not find mention of shirt Ex. P-7. As discussed earlier, he has stated about some pieces of shirt and vest lying near the cycle. Jodh Singh (PW 7) is a Junior Engineer in the Public Works Department, a Government official and an educated man. His statement is based on the site plan prepared by him after minutely observing and indicating therein the position of the site. In these circumstances, his statement is to be preferred as compared to the statement of this witness. 42. Shri Dina Nath (PW 23) is the Driver of the truck. He states that he gave lift to the appellant in the front seat of his truck from Barmana to Bilaspur at about 10.30 p.m. and reached Bilaspur in the mid night. He states that he was not aware about the name of the appellant on the day the appellant boarded his truck. He identified the appellant at the police station on 2-5-1985. No identification parade was held. He states that he was not aware about the name of the appellant on the day the appellant boarded his truck. He identified the appellant at the police station on 2-5-1985. No identification parade was held. He further states that he had given description of the clothes of the person who had taken lift in his truck and at the time when the appellant was shown to him in the police station^ he {the appellant) was wearing the same of others which he was wearing on 21th night. The statement of this witness clearly falsifies the attempt of the prosecution to show the appellant with Ramesh Kumar in a hotel at Bilaspur after having boarded the truck at Barmana at about 10-30 p.m. but the time, as stated by this witness and that given by Vijay Kumar (PW 20), does not, at all, tally. In case the prosecution version is to be believed, his statement is important to indicate that the appellant was wearing the same clothes as he was wearing on 27th night which means the shirt he purchased from his brother Raj Kumar (PW 10) and the pyjama deposed by Piar Singh (PW 12). If this is so, then the recovery of pyjama and shirt Ex. P-7 at Sonepat are fake as denied even by the appellant. 43. Shri Kanshi Ram (PW 24) is also a witness to the fact of leaving Barmana by the appellant on 27-4-1985 at about 10.30 p. m. He states that the appellant had informed him that he had visited his brother and had to reach Bilaspur as his truck was standing there; but he further states that he identified the appellant at the police station on the day his statement was recorded which shows that this witness has also been picked up by the police to make this statement. Further, it is not possible to believe that the appellant, after committing the crime and intending to flee from Barmana would tell this witness about his visit to his brother and the place of his destination. Such things are neither practically possible nor reasonably acceptable. Rather the statement of this witness throws doubt on the prosecution story. The inferences drawn and the reasons given by the learned Sessions Judge while relying upon the state-ment of this witness are, as a matter of fact, most unconvincing. 44. Such things are neither practically possible nor reasonably acceptable. Rather the statement of this witness throws doubt on the prosecution story. The inferences drawn and the reasons given by the learned Sessions Judge while relying upon the state-ment of this witness are, as a matter of fact, most unconvincing. 44. Jit Ram (PW29) is relevant only to the extent that he was posted as Incharge, Police Post Barmana, and Jagdish Chand (PW 1, loged the report on 28;41985 at 8 a. m. recorded in the Daily* Diary (Ex. PU). He sent wireless message to Superintendent of Police, Addi-IZa1 Superintendent of Police and Station House Officer, Sadar, Balaspur (PW 36) and proceeded to the spot. He states that the investigation started on the arrival of S.H.O. (PW 36). He states that he conveyed the wireless message at 9 a. m. which cannot be correct because in his own statement he says that he reached the spot at about 8 45am There is no reason to show why the First Information Report has been shown to have been recorded at Police Station, Bilaspur, at 9 a.m. This fact will be discussed while discussing the statement of SH.O. (PW 36). 45. Birbal Ram (PW 36) is the Investigating Officer. The summary of his statement is that the article of the deceased and some other articles were lying at Barmana-Salnoo road at a distance of 595 feet from the deadbody. Shirt Ex. P-7 was found lying on the parapet. In the pocket of the shirt, purse Ex. P-8 containing currency notes Ex. P-9 and Ex P 10 one photograph Ex. P-ll and one chit Ex. P-12, bearing the address of Ramesh Kumar, were taken into possession vide recovery memo. Ex PG His statement does find mention of the pieces of shirt as disclosed by Jodh Singh (P W 7). Further, it is pertinent to see that in all the recovery memos, except that of mug Ex. P-13 and tumbler Ex. P-14 the date of the preparation thereof (28-4-1985) has been given by only this witness and not by any of the witnesses to these recoveries which throws doubt as to the veracity of these recovery memos not only as to date of preparation but also indicate that they were prepared and signatures got thereon from the witnesses at one and the same time, as stated by some of the witnesses, mentioned aforesaid 46. This witness further states about Biru, the third accused in the case. He goes to Sonepat in search of the appellant and arrests the appellant there in the afternoon of 29-4-1985 fron the house of Kesri Lal a relation of the appellant although he belong to Kipurchaia Recovery of shirt Ex P-26, pyjama Ex. P-27 and shoes Ex. P-28 is stated to have been recovered vide recovery memo Ex. PR. 47. He returns on 30-4-1985 and in the evening gets the appellant medically examined. Certain injuries are stated to be there on the person of the appellant as found by the doctor which, he asserts, were there before the arrest and connects them with those found by Piar Singh (PW9)when the appellant met him while going to the house of his brother Raj Kumar (PW 10). On the other hand, the appellant explains that they were due to the beatings by the police after his arrest He takes into possession house-hold articles of accused Ramesh Kumar from Jipsi Hut, Room No. 15, vide recovery memo. Ex. PS. Why? Only this witness knows, what for he had taken into possession all the "articles from this poor man without any connection with the murder Look at the savage behaviour of the police, when it produced them before the Executive Magistrate for permission to take bair sample. Hair are pulled by force, out of their heads, and the Magistrate witnessed all this, remaining a silent spectator, not knowing whether he had power to allow it. Has the police power to do it ? It is really a very painful situation to know. It shocks judicial conscience. One more fact needs to be mentioned here. Raj Kumar (PW 10) and Lakhvinder Kaur, his wife, were detained in the police station at 4 p.m. on 28-4-1985. The husband was detained throughout the night whereas his wife was taken away by the police to Sonepat. Why has it been done? Mas the police any such powers? Which law authorises them to detain a person in the police station throughout the night especially when he is not, even, a suspect ? Why Lakhvinder Kaur was called to the police station? kept there and then taken by the police to Sonepat despite, ban on such like treatment with women by judicial pronouncements, provisions in the Code of Criminal Procedure and Punjab Police Rules. Why Lakhvinder Kaur was called to the police station? kept there and then taken by the police to Sonepat despite, ban on such like treatment with women by judicial pronouncements, provisions in the Code of Criminal Procedure and Punjab Police Rules. This calls for an inquiry into the matter, otherwise if left undone it will lead to more chaotic situations and zealous police officers behaving in a manner which is neither permissible under our Constitution nor acceptable under any norm of human behaviour in the society. Earlier such things are checked, better it is. 48. This witness remains at the spot upto 11.55 p. m. on 28-4-1985. Goes to Sonepat where he reaches on 29-4-1985 in the afternoon. There is no evidence as to when he exactly reached back at Bilaspur till 6 p. m., when he is stated to have been taken to a doctor. He denies the suggestion that the appellant was wearing shirt Ex P-7 at the time of his arrest at Sonepat and the same was removed and shown to have been recovered from the spot on 27-4-1985 by antedating the recoveries, lie states that the appellant, when arrested at Sonepat, was wearing shirt and pent and volunteers to say that there was injury on the forehead on the left side of the appellant on which the appellant had affixed stitching plaster. He denies even the involvement of Bhup Singh deceased and Jagdish Chand (PW 1) in excise cases despite the fact that he is the S.H.O. of the area. He denies the suggestion that the recoveries had been antedated. However, he admits that the glass tumbler was not sent to the Finger Print Bureau for examination. He also denies the suggestion that photograph Ex. P-II was taken at the time of the arrest of the appellant and was planted as a recovery on 28-4-1985. He also denies that he forced the appellant to write the slip Ex. P-12 after his arrest, planted the same and shown the same as recovered on 28-4-1985. 49. Some examination of recovery made at Sonepat is necessary. Pritam Chand, H.C. No. 524 (PW 15), states that the appellant was found in the house at Sonepat which was searched by the Himachal Police in his presence. He states that the appellant had produced one shirt, one pyjama and shoes which were taken into possession by the police vide memo. Ex. Pritam Chand, H.C. No. 524 (PW 15), states that the appellant was found in the house at Sonepat which was searched by the Himachal Police in his presence. He states that the appellant had produced one shirt, one pyjama and shoes which were taken into possession by the police vide memo. Ex. PR signed by him The articles were packed and sealed and the seal after use was handed over to him which got misplaced. His statement indicates that the articles were not packed and sealed in Sonepat. There was no reason for him to have misplaced the seal in case it had been used at Sonepat and given to him. Secondly, the way, these articles were packed and sealed, does not appeal to sense. Either they can be packed and sealed in separate parcels (shirt, pyjama and shoes) or shirt and pyjama may be sealed in one parcel but any of them cannot be packed and sealed with shoes. In this case, the shirt is stated to have been packed separately and pyjama has been packed and sealed with shoes. One could think of reliance on these recoveries in case the seal could be made available by this witness, but its non-availability indicates that these articles were brought from Sonepat and rest of the formalities were done at Bilaspur and no sea! was, in fact, given to this witness. 50. The assertion of blood being found on the pyjama and shoes is not of much consequence. In case the appellant was wearing pyjama as stated by Piar Singh (PW 9), then he was wearing the same when he boarded the truck and also at the time he was seen by Dina Nath (PW 23), the driver of the truck, in the police station. If this is so, blood stains on the trouser can be because of the appellants beatings as stated by the appellant but the recovery of the same from Sonepat is ruled out not only on this ground but also because a person who has committed an offence would not keep blood stained pyjama in his house and produce the same before the police. The same principle applies in the case of shoes. 51. Shirts play a key role in the prosecution story, In case their part is eliminated, the whole prosecution case falls to the ground. There are two shirts-one Ex. The same principle applies in the case of shoes. 51. Shirts play a key role in the prosecution story, In case their part is eliminated, the whole prosecution case falls to the ground. There are two shirts-one Ex. P-7 found on the parapet and containing purse, chit and two currency notes and the other taken by the appellant from his brother Raj Kumar (PW 10) There are no blood stains on Ex. P-7 nor are they on Ex. P-26 which was recovered at Sonepat. In case the prosecution story is believed that two shirts are in picture, the appellant was wearing the third shirt, but this is not so in prosecution evidence. The statement of Dina Nath (PW 23) clearly mentions that the appellant was wearing the same clothes when he got lift in his truck on 27-4-1985 as he was wearing while in the police station on 2-5-1985. The position is clear The explanation of the appellant is that Ex. P-7 was planted by the police after his arrest. Secondly, he states that the photograph was brought by the police from Sonepat. He was made to write the particulars of Ramesh Kumar on slip Ex. P-8 and planted in the pocket of the shirt. This explanation is plain, genuine and truthful. It fits into the circumstances and the manner in which the investigation was being carried on. The recovery of the shirt, photograph and chit is absolutely false. The same was planted by the investigating agency to connect the appellant with the offence. The police has not been in a position to find out the real causes of the death of the deceased and the circumstances in which the deceased was killed and at what place the same happened because the presence of the appellant and his co accused is shown to be at one piece where no marks of violence have been shown but the dead body found at a distance of 595 feet away not only from the road but also from the place where the presence of the appellant and others his been shown. How the incident took place there? There are signs of violence. How everything happened? Who was the actual assailant? There is no exact reliable evidence as to this. 52. It is necessary to examine the circumstances of Bhup Singh deceased. How the incident took place there? There are signs of violence. How everything happened? Who was the actual assailant? There is no exact reliable evidence as to this. 52. It is necessary to examine the circumstances of Bhup Singh deceased. It is in evidence that he was carrying on business in competition at Barmana.) He was carrying on illicit distillation. He was involved in excise offences. He used to go to his place after closing his shop and during these days he used to go late to his village due to construction work It is also in evidence that he used to take liquor and pick up quarrels with others Therefore, looking to his way of living, it is reasonable to infer that he was killed by someone else Doctor P. S. Dogra, Medical Officer (PW 33) has specifically stated that the deceased had consumed liquor and this fact was confirmed by the report of the Chemical Examiner, Ex. PY. The police has not investigated as to what the deceased had been doing in his shop on that date and upto which time. It has also not been investigated with whom he had taken liquor on that date. This shows that it was rightly suggested by the appellant to certain prosecution witnesses. If so, where? It is also not investigated at what time he left his shop that day and who was his companion to his village. 53. It is not clear at what time the incident took place. The basis has been taken to be in the night intervening 27/28-4-1985, which means that the offence must have taken place at about 12 30/1 A. M. It appears, that this information is based on the information of Jagdish Chand (PW 1) who may have found out the same in the inquiry made by him at his own level as he states in his information to the police as well as in his statement in the court. The result is, even if the case of the prosecution is believed—that the appellant was no longer at Barmana, having left this place at 10.30 P. M. on 27-4-1985—the conclusion which can be drawn in these circumstances, is that the prosecution has not succeeded in finding out the exact time of the incident which is most essential in this case. The result is, even if the case of the prosecution is believed—that the appellant was no longer at Barmana, having left this place at 10.30 P. M. on 27-4-1985—the conclusion which can be drawn in these circumstances, is that the prosecution has not succeeded in finding out the exact time of the incident which is most essential in this case. It is clear that as soon as it received the information through Jagdish Chand (PW 1), it closed all its relevant records/registers, started the investigation and completed the same practically in two days. On so completing the documents, necessary entries were made and suitable dates appended to the documents Deposit of the recoveries in the malkhana has been shown to be on 28-4-1985 and a reliance has been placed on the same by the learned Counsel for the State to prove that they were not antedated, but giving a date to a document, may be, in the malkhana register, is not going to make an action, otherwise doubtful, to be truthful when every act is to be performed by the same agency. Why dates were not got on the uncover memos when the signatures of witnesses were obtained thereon ? Why independent and some other witnesses were not asked to come forward to witness the recoveries specially when there were a large number of people present there ? Why was the First Information Report shown to have been recorded at 9 A.M. when the message was actually received at 8.30 A.M. ? Why the same was submitted to the Magistrate so late on 29-4-1985? There is no answer to all these facts. Sending of the report to the Judicial Magistrate, in the alternative, even if it is considered that there was no gross delay, the facts forming part of the investigation by the police and the Magistrate do not bind down the investigating agency within a particular sphere as the information only hints at the motive and suspicion on the appellant. The attempt of the prosecution is to show that the appellant had motive to do away with the deceased. If so accepted, can it be believed that the appellant would come to Barmana bare handed without any weapon of offence with an idea in mind that he would lay his hands upon a stone to kill the deceased ? It cannot be believed. If so accepted, can it be believed that the appellant would come to Barmana bare handed without any weapon of offence with an idea in mind that he would lay his hands upon a stone to kill the deceased ? It cannot be believed. This act is also one of the many factors eliminating the participation of the appellant in the commission of the crime. 54. The perusal of the statement of the appellant under section 313 of the Code of Criminal Procedure, his suggestions to the prosecution witnesses as well as the record of the case clearly indicate to only one thing that the appellant has not committed the offence and the prosecution has failed miserably to prove the case against the appellant. The circumstantial evidence placed on the record is thoroughly weak^ faulty, unconvincing and devoid of requirements of such like evidence, 55. In view of the facts and circumstances discussed above, there is no other option except to allow this appeal. The appeal succeeds and is allowed. The conviction of the appellant is set-aside. He is stated to be in jail. He be set at liberty at once, if not required in any other case. The bail bonds and surety bonds, if any executed at any stage of this case, are hereby cancelled. Appeal allowed. -