JUDGMENT M.R. Verma, J.—Since both these appeals arise out of the single judgment dated December 9, 1998 passed by the learned Sessions Judge, Chamba whereby the accused/appellants (hereafter referred to as the accused) have been convicted and sentenced under Section 302 read with Section 34 of the Indian Penal Code. 2. Briefly stated, the prosecution case is that on July 22, 1997 at about 3.15 a.m. telephonic information was received from one Mr. Uttam Chand, Deputy Superintendent of Police, Chamera Project Banikhet, in the Police Station, Dalhousie to the effect that one dead body had been brought from the side of Bagdhar in the Chamera Hospital Banikhet. On receipt of this information, officer-in-charge of Police Station Dalhousie PW-22 Rajinder Sharma reached Chamera Hospital. After inspection of the body, he prepared the inquest report Ext. PM, got the dead body photographed and sent the dead body for post mortem to Civil Hospital, Dalhousie. The post mortem of the dead body which was of one Puran Chand, Wireless Messanger, resident of Bagdhar, Tehsil Dalhousie, was conducted by PW-18 Dr. P.K. Ahluwalia and the post mortem report is Ext. PN wherein it has been opined that: "the cause of death in this case is due to haemorrhage and shock which is irreversible. Exact opinion will be given after the report of Chemical Examiner. Abdominal cavity full of blood due to rupture of spleen. Sufficient to cause death. Injury No.1 and 2nd are with sharp object and are Ante mortem in nature. Injury No.3 and 4th caused by blunt object, post mortem in nature. Injury No. 5th caused by blunt object. Ante mortem in nature." The detailed description of the injuries as given in the post mortem report, reads as follows: “1. Incised wound Rt. frontal region above three fingers from Rt. eye brow lat l/3rd region 4 cm x 2 cm x 1 cm. Blood oozing, margins clear elliptical shape. Ante mortem in nature. 2. Incised wound It. half of chin 5 cm x 2 cm x 1 cm elliptical in shape margins clear blood oozing Ante mortem. 3. Rounded bruise 1 cm. in diameter, laceration on margins at 1°c to 3°c positions in infra memory region. Reddish blue in colour. One rounded bruise 2 mm in diameter over left nipple in mid clavicular region, three fingers above left nipple. Redish blue in colour. Post-mortem in nature. 4. 3. Rounded bruise 1 cm. in diameter, laceration on margins at 1°c to 3°c positions in infra memory region. Reddish blue in colour. One rounded bruise 2 mm in diameter over left nipple in mid clavicular region, three fingers above left nipple. Redish blue in colour. Post-mortem in nature. 4. Multiple bruises and abrasions right knee right arm, middle 1/3rd region both lower legs. Right scapula region bluish colouration. No ozing. These are post-mortem injuries on opening abdominal cavity, full of blood. 5. 7 bruises of variable size 4 cms. to 15 cms. breadth 2 cms. linear in shape, bluish redish in colour in left scapular and infra scapular region. Ante-mortem in nature.” 3. PW-22 Rajinder Sharma, Sub-Inspector then proceeded to Bagdhar to inquire into the matter. He recorded the statement of PW-1 Mohinder Singh under Section 154 of the Criminal Procedure Code Ext. PA whereupon First Information Report Ext. PO was recorded at Police Station, Dalhousie. PW-1 Mohinder Singh had stated that he was sure that Puran Chand was beaten up by the accused with some fatal weapon with the intention to kill him. The reason being that two days before the occurrence accused Kewal Kumar had a quarrel with the deceased. During the course of investigation it was found that two days before the occurrence there was some verbal altercation between the deceased and accused Kewal Kumar because accused Kewal Kumar had thrown Coca Cola on Puran Chand. On July 21, 1997, there was again altercation between the two about the earlier incident in which PW-3 Ajit Singh and PW-7 Pritam Chand had intervened and pacified them. It was also found that on July 2 1, 1997 accused Kewal Kumar, who is a truck driver, had brought sand loaded in the truck HP 47-0228 from Kheri to Bagdhar. He was accompanied by accused Vyas Dev, PW5 Roshan Lal and PW-6 Naresh Kumar. Since the dispute between the deceased and accused Kewal Kumar had been patched up, therefore, accused Kewal Kumar, his companion and Puran Chand together came to Bagdhar Chowk. There the truck was parked near the shop of Prem Singh, PWs Roshan Lal and Naresh Kumar started unloading the truck, but accused Kewal Kumar and Vyas Dev started taking liquor on the wall of the hand-pump at the Chowk. They had brought the liquor while on way from kheri to Bagdhar. There the truck was parked near the shop of Prem Singh, PWs Roshan Lal and Naresh Kumar started unloading the truck, but accused Kewal Kumar and Vyas Dev started taking liquor on the wall of the hand-pump at the Chowk. They had brought the liquor while on way from kheri to Bagdhar. PW-8 Sansar Chand also met them at that time and was offered liquor but he refused and went home. 4. At about 9.30 p.m. when PWs Roshan Lal and Naresh Kumar were still unloading the truck, they heard the sound of opening of the drivers window of the tuck and also heard the sounds of tools in the tool-box. When they finished unloading of the truck, PW-5 Roshan Lal, conductor of the Truck, sent Naresh Kumar, labourer to call accused Kewal Kumar. When Naresh Kumar was on his way towards accused Kewal Kumar, he saw both the accused running towards the truck. At that time accused Kewal Kumar was having one iron rod in his hand. He asked the Conductor and the labourer aforesaid to sit in the truck and immediately thereafter took the truck towards Kheri from Bagdhar. On the next curve on the way accused Vyas Dev alighted from the truck. Thereafter on the way accused Kewal Kumar informed the aforesaid Conductor and the labourer that he and Vyas Dev had a quarrel with Puran Chand and that they should not divulge it to anybody. It was also found that on July 22, 1997 at about 5.30 a.m. accused Vyas Dev and his mother went to the house of PW-8 Sansar Chand and informed him that during the night the accused had a quarrel in which beating also took place with Puran Chand and that if somebody asked him (Sansar Chand), he might tell that accused Vyas Dev had come to his house alongwith him. 5. During the course of investigation, police recovered one iron wheel-brace rod produced by accused Kewal Kumar vide memo, Ext. PB and also took the truck No. HP 47-0228 in possession vide memo. Ext. PC. The wearing apparels of accused Vyas Dev were recovered on search of his house vide memo. Ext. PD and the wearing apparels of accused Kewal Kumar were produced by him at the time of search of his residence which were taken in possession vide memo. Ext. PE. Ext. PC. The wearing apparels of accused Vyas Dev were recovered on search of his house vide memo. Ext. PD and the wearing apparels of accused Kewal Kumar were produced by him at the time of search of his residence which were taken in possession vide memo. Ext. PE. The clothes so taken in possession were sent to State Forensic Science Laboratory and the report received therefrom is Ext. PS. The viscera of the deceased was also got analysed in the said laboratory to rule out the possibility of any poison therein and the report received from the said Laboratory in this regard is Ext. PR. 6. To prove the charge against the accused, the prosecution examined as many as 22 witnesses. The accused in their statements under Section 313 of the Criminal Procedure Code have denied their involvement in the commission of the offence alleged to have been committed by them and have claimed to be innocent. Accused Vyas Dev led defence and examined his mother DW-1 Sumitra to prove that he had not gone to Sansar Chand as alleged by the prosecution and there is enmity between Sansar Chand and the family of accused Vyas Dev. 7. We have heard the learned Counsel for the accused and the learned Assistants Advocate General for the respondent-State and have gone through the record of the case. 8. Be it stated at the very outset that there is no eye-witness of the alleged occurrence, therefore, to prove the charge against the accused, the prosecution has led circumstantial evidence. In holding the charge against the accused proved, the learned Sessions Judge has relied on the following circumstances: "1. The circumstance regarding the quarrel which had taken place in between the accused Kewal Kumar and the deceased Puran Chand; 2. The deceased was last seen in the company of the accused persons; 3. Admission of accused Vyas Dev regarding his presence on the spot of occurrence; 4. Recovery of blood stained wheel brace rod from the possession of the accused Kewal Kumar; 5. Recovery of blood stained clothes of accused Kewal Kumar; 6. Conduct of accused Vyas Dev; 7. Subsequent conduct of accused Kewal Kumar; and 8. Medical evidence to the effect that there were injuries on the body of deceased Puran Chand and he had died as a result of the said injuries.” 9. Recovery of blood stained clothes of accused Kewal Kumar; 6. Conduct of accused Vyas Dev; 7. Subsequent conduct of accused Kewal Kumar; and 8. Medical evidence to the effect that there were injuries on the body of deceased Puran Chand and he had died as a result of the said injuries.” 9. The learned Counsel for the accused has contended that the circumstantial evidence led by the prosecution to prove the charge against the accused is self-contradictory and concocted and none of the circumstances relied upon by the learned trial Judge to hold the accused guilty of the commission of the offence is established in view of such evidence. Therefore, the charge against the accused could not be held as proved. 10. The learned Assistant Advocate General, on the other hand has contended that all the circumstances on which the learned trial Judge has placed reliance in convicting and sentencing the accused are fully, cogently and firmly established and are consistent with the hypothesis of the guilt of the accused and inconsistent with their alleged innocence. 11. It is well established principle of law that where the inference of guilt of an accused person is to be drawn from circumstantial evidence, only those circumstances must, in the first place, be cogently established. Further, these circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. (See : Rama Nand and others v. The State of Himachal Pradesh (1981 Cr. L.J. 298). 12. The Supreme Court in Jaharlal Das v. State of Orissa (1991 Cr. (See : Rama Nand and others v. The State of Himachal Pradesh (1981 Cr. L.J. 298). 12. The Supreme Court in Jaharlal Das v. State of Orissa (1991 Cr. L.J. 1809) while dealing with a case of rape and murder based on circumstantial evidence, has held: "It is well settled that the circumstantial evidence in order to sustain conviction must satisfy three conditions : (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances, should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused." 13. The Supreme Court further sounded a word of caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of innocence of the accused. 14. In Akhilesh Hajam v. State of Bihar (1995 Supp (3) SCC 357), it has further been held that from the evidence it may appear that in all probability the accused may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travelled between the expression "may be" and "must be". However, strong the emotional considerations may be, but the same cannot take place of proof. 15. Bearing the above principles in mind, we now proceed to consider each of the circumstances relied upon by the learned Sessions Judge and the reasoning given in coming to the conclusion that the two accused alone had committed the offence and none else. 16. Circumstance No. 1. 15. Bearing the above principles in mind, we now proceed to consider each of the circumstances relied upon by the learned Sessions Judge and the reasoning given in coming to the conclusion that the two accused alone had committed the offence and none else. 16. Circumstance No. 1. This circumstance as alleged in the F.I.R. Ext. PO precisely is that on enquiry made from Ajit Singh, Pritam Singh and Bishan Datt, PW Mohinder Singh came to know that in the night on July 21, 1997 verbal altercation took place between the accused and the deceased and they abused each other. PW-1 Mohinder Singh who made the statement Ext. PA, in his statement in the Court has stated that he was so informed by Ajit Singh and it is not in his statement that Bishan Datt and Pritam Singh had also given him the same information. PW-3 Ajit Singh has not supported the aforesaid version of PW-1 Mohinder Singh. What he states is that when he was inside a truck which had brought sand to him, a truck driven by accused Kewal Kumar also came there and he heard the noise of hurling abuses, but he is unaware as to who was/were hurling the abuses. He then requested the driver of the truck who had brought sand to him, to give pass to the truck driven by the accused, who obliged and accused Kewal Kumar drove away his truck. In the cross-examination he has stated that the abuses were being hurled regarding crossing of the truck and he did not state about those facts to anyone except the police. Thus, it is clear that the hurling of abuses and the noise which PW-3 Ajit Singh heard, were regarding crossing of the trucks and had nothing to do with the deceased and this witness did not inform PW-1 Mohinder Singh about any quarrel between the accused and the deceased. Be it stated that PW-3 Ajit Singh has not been cross-examined for the prosecution on the version given by him and, therefore, the prosecution has accepted his version as aforesaid. 17. PW-4 Bishan Dass has stated that when he along with Chaman Lal was unloading sand of Ajit Singh from a truck, some quarrel was going on between accused Kewal Kumar and the deceased and accused Vyas Dev was there. He is unaware as to what words were used in the quarrel. 17. PW-4 Bishan Dass has stated that when he along with Chaman Lal was unloading sand of Ajit Singh from a truck, some quarrel was going on between accused Kewal Kumar and the deceased and accused Vyas Dev was there. He is unaware as to what words were used in the quarrel. In case, as admitted by PW-4 Bishan Dass, he was busy in unloading the truck at the relevant time, he cannot be expected to have properly heard and visualised the happenings. He has admitted in his cross-examination that he had not seen with his own eyes anyone hurling the abuses and he is not in a position to deny that the quarrel which he heard was in fact going on between the truck drivers of the two trucks on the spot regarding taking pass. This witness also does not state that he even informed PW-1 Mohinder Singh about the quarrel. Thus, the statement of this witness is full of suspicion and not trustworthy. 18. PW-7 Pritam Chand has stated that in his presence the deceased had asked accused Kewal Kumar as to why he had thrown water on him on which they started quarreling with each other. The witness has further stated that he advised accused Kewal Kumar to realise his mistake and thereupon the accused admitted his mistake. This witness is related to the deceased. He is the driver of the truck which was parked on the spot when accused Kewal Kumar while driving his truck came there and wanted pass for his truck. He has admitted that when his truck was being unloaded, two trucks came there and he allowed them to cross. Then came the truck driven by the accused and this witness did not move his truck and asked the accused to wait. In view of this, the version of PW-3 Ajit Singh that the quarrel took place between the drivers of the two trucks who abused each other, appears to be true. Thus, the quarrel having taken place between the accused and PW-7 Pritam Chand is a stronger possibility which could motivate PW-7 to make a false statement against the accused. He has not stated that accused Vyas Dev also took part in the quarrel. Moreover, the record reveals that PW-7 Pritam Chand has the tendency to charge version according to the occasion. He has not stated that accused Vyas Dev also took part in the quarrel. Moreover, the record reveals that PW-7 Pritam Chand has the tendency to charge version according to the occasion. When cross-examined, he could not say whether Puran Chand deceased at that time was drunk. He has denied to have stated before the police that Puran Chand had consumed liquor at that time. However, in his statement under Section 161 of the Criminal Procedure Code Ext. DB he has stated that he had felt that Puran Chand had consumed liquor. Thus, his statement is not worth reliance to prove this circumstance. Assuming that this witness has made a true statement, even then the dispute, if any, about the throwing of water stood patched up between Kewal Kumar and Puran Chand and thus it cannot be a circumstance worth reliance to connect the accused with the offence. PW-5 Roshan Lal and PW-6 Naresh Kumar are the other witnesses examined to prove this version but they have not supported it. The prosecution, thus, has not been able to prove this circumstance which is even otherwise incapable of connecting the accused with the commission of the offence because of the quarrel having been patched up. 19. Circumstance No. 2. According to the prosecution, the deceased was lastly seen with the accused in Bagdhar on July 21, 1997. The witnesses examined to prove this version are PW-3 Ajit Singh, PW-4 Bishan Dass, PW- 5 Roshan Lal, PW-6 Naresh Kumar, PW-7 Pritam Chand and PW-8 Sansar Chand. PW-3 Ajit Singh has stated that at about 8.30/9 p.m. he was informed of the arrival of the truck loaded with sand in Bagdhar. He then went there, made payment of carriage charges to the owner of the truck and then got the truck unloaded. When he was going home after unloading the truck, the deceased met him at the shop of Amar Nath. He asked the deceased whether he was going home and the deceased replied that he would come after sometime. Taking into account that time which might have been taken for making payment and unloading of the truck, the deceased might have so met this witness around 10.00 p.m. but at that time accused are not stated to be with him. As per the. Taking into account that time which might have been taken for making payment and unloading of the truck, the deceased might have so met this witness around 10.00 p.m. but at that time accused are not stated to be with him. As per the. statement of PW-4 Bishan Dass, he saw the accused and the deceased at about 7.45 p.m. and lastly at 9.15 p.m. when he left the place. It is not in his statement that the accused and the deceased were together when he left the place as is clear from his statement that Puran Chand (deceased) was sitting with them when they were unloading the truck and thereafter he went to a nearby shop. He is not aware whether the deceased had left the shop before his departure from the place or not. Thus, the deceased having left the place to go to the shop and thereafter when he went being unknown to this witness. It cannot be said that he had lastly seen the deceased with the accused before the deceased was found injured. PW-5 Roshan Lal and PW-6 Naresh Kumar had not seen Puran Chand deceased on July 21, 1997 at all and thus they do not support the prosecution version. 20. PW-7 Pritam Chand states that truck of accused Kewal Kumar remained on the spot for unloading and the deceased was also standing there. The witness left at about 9.30 p.m. This witness has already been held unreliable for the reason stated heretofore and much reliance on his testimony cannot be placed. 21. PW-8 Sansar Chand has stated that he saw the accused and the deceased sitting near the hand-pump at Bagdhar on July 21, 1997 at about 8.15 p.m. and they were busy in conversation. Thus, he went to the shop, made a few purchases and thereafter enquired from accused Vyas Dev whether he was going home and the accused replied in the negative and thereafter, he left the place. 22. From the statements of the witnesses, as discussed above, what emerges is that the deceased was lastly seen before he was found injured around 10.00 p.m. by PW-3 Ajit Singh at the shop of Amar Nath when he was alone. What creates grave doubts about this version is the statement of PW-1 Mohinder Singh who made the statement Ext. PA. From the statements of the witnesses, as discussed above, what emerges is that the deceased was lastly seen before he was found injured around 10.00 p.m. by PW-3 Ajit Singh at the shop of Amar Nath when he was alone. What creates grave doubts about this version is the statement of PW-1 Mohinder Singh who made the statement Ext. PA. In that statement it is stated by him that the deceased had met him on July, 21, 1997 at 7.30 p.m. at his shop and they together went to the house of Kirpa Ram to enquire about the health of mother of the deceased. They stayed there for about 15 or 20 minutes and thereafter the deceased left his house towards Bagdhar Chowk and the witness left for his house in Khirdidhar. In his statement the witness has stated that from the house of Kirpa Ram he came back to his shop at Bagdhar and the deceased went towards his house in village Agla Lahad at about 7.45 p.m. Thus, he has contradicted the version as in the First Information Report. In case this witness came to his shop at Bagdhar and the deceased was also to return to Bagdhar, they could come together. In case the deceased had left for his house in village Agla Lahad as stated by PW-1 Mohinder Singh, it remains a mystery as to how the deceased was subsequently seen in Bagdhar. The prosecution, thus, has failed to prove that the deceased was lastly seen with the accused before he was found injured. The evidence on record merely proves that the accused and the deceased were present in Bagdhar on July 21, 1997. 23. Circumstances No. 3 and 6: Since these circumstances are interlinked, therefore, can be conveniently examined together. 24. PW-8 Sansar Chand has stated that on the morning of July 22, 1997 at about 5.30 a.m., accused Vyas Dev alongwith his mother came to his house and told him that on the previous night there was a fight between him and the deceased and requested that if someone enquired from him, he should tell that accused Vyas Dev had come with him. He has further stated that he had disclosed it to Raj Kumar, brother of the deceased on the evening on July 22, 1997 at Bagdhar Chowk and that he did not disclose it to any other person except the police and he stated about it to the police on July 27, 1997. 25. Primarily, it is not believable that accused Vyas Dev had made such a statement to this witness. He is not shown to be so related to the accused that the accused would have reposed the confidence in him and narrated the occurrence to him. Secondly, accused Kewal Kumar does not figure anywhere in such disclosure. Lastly, there is no strong motive imputed or inferable on the part of accused Vyas Dev which could lead to a fight between him and the deceased. PW-8 Sansar Chand claims to have informed Raj Kumar, brother of the deceased about the alleged disclosure. However, there is nothing on the record to show that the deceased had any brother named Raj Kumar. If there is any, he has not been examined. However, PW-13 Devinder Kumar, one of the brothers of the deceased, has stated that he was informed by PW-8 Sansar Chand about the aforesaid disclosure on July 22, 1997 in the evening. This witness in his cross-examination has stated that he had stated about it to the police. The statement of this witness under Section 161 of the Criminal Procedure Code Ext. DC was recorded by the police on September 10, 1997 and in this statement he had not stated about accused Vyas Dev having disclosed about his fight with the deceased to Sansar Chand (PW-8). There is nothing on the record, except his statement, to suggest that this witness even disclosed it to the police. Had he really come to know of it on July 22, 1997, being brother of the deceased, he would have immediately informed the police about it which he never did. Statement of PW-6 Sansar Chand was, admittedly, recorded on July 27, 1997, that is, after five days of the death of Puran Chand. For the reasons already stated, this version of the prosecution is also not established and appears to be a manipulation, engineered at the belated stage. Statement of PW-6 Sansar Chand was, admittedly, recorded on July 27, 1997, that is, after five days of the death of Puran Chand. For the reasons already stated, this version of the prosecution is also not established and appears to be a manipulation, engineered at the belated stage. Therefore, the alleged admission by accused Vyas Dev about his presence on the spot has not been dealt with by the learned trial Judge in his judgment on any separate footing but as a part of circumstance No. 6, which is not established. Mere presence of accused Vyas Dev at Bagdhar on the fateful day is of no use and consequence. The prosecution has, thus, failed to cogently and firmly prove these circumstances. 26. Circumstances Nos. 4 and 8: These circumstances are inter-related and are therefore, taken up for consideration and determination together. The blood-stained wheel-brace rod Ext. P-l, the alleged weapon of offence, has been recovered by the police vide memo. Ext. PB. It is alleged to have been produced to PW-22 Rajinder Sharma by accused Kewal Kumar in the presence of PW-1 Mohinder Singh and PW-9 Gian Chand, after taking it out from a cabin behind the driver seat of truck No. HP 47-0228 on July 22, 1997 and it was identified by PW-5 Roshan Lal. PW-1 Mohinder Singh has stated that Roshan Lal, conductor of the truck took out the rod Ext. P-1 from inside the vehicle and handed it over to the police. Thus, this witness does not support the recovery of rod Ext. P-1 on production by accused Kewal Kumar. PW-9 Gian Chand has also not supported this recovery as alleged and had stated that a rod was produced by him to the police and that Ext. P-l is not the rod produced by him. PW-5 Roshan Lal has also not supported the prosecution version and had stated that rod Ext. P-l is not of the truck of which he is the Conductor. PW-22 Rajinder Sharma, the Investigating Officer, therefore, cannot be relied on when he states that accused Kewal Kumar produced rod P-l before him. The alleged recovery of the rod Ext. P-l as a weapon of offence on production by accused Kewal Kumar is, thus, not proved. 27. P-l is not of the truck of which he is the Conductor. PW-22 Rajinder Sharma, the Investigating Officer, therefore, cannot be relied on when he states that accused Kewal Kumar produced rod P-l before him. The alleged recovery of the rod Ext. P-l as a weapon of offence on production by accused Kewal Kumar is, thus, not proved. 27. As already set out in the earlier part of this judgment at the time of post mortem of the dead body of Puran Chand, five injuries were found thereon. Two of such injuries were post mortem in nature as opined vide post mortem report Ext. PN and as stated by PW-18 Dr. P.K. Ahluwalia. There is no explanation as to how these injuries were sustained. The remaining three injuries numbered as 1, 2 and 5 were ante-mortem. According to the opinion given by PW-18 Dr. P.K. Ahluwalia, injury No. 1, that is, incised wound on right frontal region above right eye brow and injury No. 2, that is, incised wound on left half of chin were caused with a sharp object and injury No. 5, that is, the seven bruises in left and infra scapular region was caused with blunt object. Since it is admitted by PW-18 Dr. P.K. Ahluwalia that rod Ext. P-l is not sharp edged weapon, therefore, injury Nos. 1 and 2 supra, which are opined to have been caused with sharp object, could not have been caused by a blunt object like rod Ext. P-l. The fatal injury as per opinion, was injury No. 5 supra coupled with the rupture of spleen and these injuries (bruises) were capable of being caused with rod Ext. P-1 and rupture of spleen could also have been caused with rod Ext. P-l if it was hit against a person on his spleen. Thus, the rupture of spleen could have been caused by rod Ext. P-1 if it was hit on the spleen of the accused. Since the spleen of the deceased was found ruptured, therefore, it has to be ascertained whether any blow by rod Ext. P-l can be the cause of rupture of the spleen. 28. Thus, the rupture of spleen could have been caused by rod Ext. P-1 if it was hit on the spleen of the accused. Since the spleen of the deceased was found ruptured, therefore, it has to be ascertained whether any blow by rod Ext. P-l can be the cause of rupture of the spleen. 28. The position of spleen in the human body and the force required to cause its rupture is mentioned by Modi in his "Medical Jurisprudence and Toxicology" (21st Edition) at pages 332 & 333 which reads as follows: "On account of its situation, rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height; in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction forces may be torn from its pedicle. An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. In such cases the abdominal wall may not show any external mark of injury. During a period of eight years, Modi met with 36 cases of rupture of the spleen as a result of fall and blows. Of these cases 6 showed marks of bruising on the abdominal wall over the splenic region and in one the left ninth and tenth ribs were fractured. Rupture usually takes place in its concave or inner surface, and causes death rapidly from haemorrhage owing to its great vascularity. Rupture of an enlarged spleen from very slight violence is a common occurrence in districts where malaria and kala azar are prevailing, and every medical jurist is familiar with such cases. An enlarged spleen may sometimes rupture spontaneously from the contraction of the abdominal muscles during the act of sneezing, coughing, vomitting or straining, particularly if the spleen is abnormally mobile. Rare cases have also been reported in which it is claimed that a perfectly healthy normal spleen has ruptured spontaneously. An enlarged spleen may sometimes rupture spontaneously from the contraction of the abdominal muscles during the act of sneezing, coughing, vomitting or straining, particularly if the spleen is abnormally mobile. Rare cases have also been reported in which it is claimed that a perfectly healthy normal spleen has ruptured spontaneously. It is difficult to believe that a normal spleen can rupture suddenly without apparent cause. It is, however, possible that occasionally, in certain individuals and at certain phases, a healthy normal spleen may rupture from minimal trauma. If the capsule is intact in such a case, the symptoms may be delayed for hours or days, and when eventually the patent collapses he has forgotten the original and causative injury so that the spleen appears to have ruptured spontaneously.” 29. As is evident from the above, ordinarily a normal spleen could be ruptured by rod like Ext. P-l if it was used to give the blow on spleen with considerable force. However, in case of an enlarged spleen it could cause rupture even without use of more force. In the post mortem report Ext. PN it has not been mentioned whether the spleen of the deceased was normal or enlarged. PW-18 P.K. Ahluwalia in his statement has stated that the spleen of the deceased was normal and not enlarged. If so, for causing its rupture a forceful blow was required. Such a blow would have caused external injury on the corresponding portion of the body of the deceased. However, no such external injury in this case has been found on the dead body of Puran Chand. The seven bruises found on his shoulder-blade (scapular) region cannot be co-related to the rupture of his spleen. Thus rod Ext. P-l cannot be said to be the weapon used for causing the rupture of the spleen in this case. The medical evidence, thus, only proves that the deceased died of the injury No. 5 and rupture of spleen and not that the injuries sustained by him were caused by rod Ext. P-l produced in evidence as the weapon of offence. The circumstances of recovery of rod Ext. P-l and nature of injuries found on the dead body of Puran Chand do not lend any corroboration to the case of the prosecution that the injuries on the body of the deceased were caused by the accused with rod Ext. P-l. 30. P-l produced in evidence as the weapon of offence. The circumstances of recovery of rod Ext. P-l and nature of injuries found on the dead body of Puran Chand do not lend any corroboration to the case of the prosecution that the injuries on the body of the deceased were caused by the accused with rod Ext. P-l. 30. It may be pointed out here that Puran Chand while lying in injured condition on the road was for the first time noticed by Mohinder Sharma who earlier heard the cries coming from the place where Puran Chand was lying and PW-2 Darshan Kumar who on hearing about the cries from said Mohinder Sharma, accompanied him to the spot. Said Mohinder Sharma has not been examined. PW-2 Darshan Kumar has stated that when he alongwith Mohinder Sharma reached the spot, Puran Chand was lying on the road with his mouth towards the ground. Mohinder Sharma and PW-2 Darshan Kumar then went to his house .and informed his brother PW-13 Devinder Kumar and PW-17 Chaman Lal then all the four came to the spot. PW-2 Darshan Kumar has further stated that Puran Chand did not respond to their calls. In his cross-examination he has denied the suggestion that in his presence Devinder Kumar, brother of the deceased, had informed the wife of Puran Chand that he was lying drunk on the road. However, this part of his statement is belied by his version in his statement Ext. DA wherein he has stated that Devinder Kumar had told the wife and children of Puran Chand that Puran Chand had fallen down due to consumption of liquor and that he was to be brought home. Denial of having made such a statement by this witness reveals that attempt has been made to conceal facts by the witness. There is nothing in the statement of this witness to show as to whether the deceased, when seen by him and Mohinder Sharma, was already injured or not. According to PW-13 Devinder Kumar, when alongwith PW-2 Darshan Kumar, PW-17 Chaman Lal and Mohinder Sharma, he reached the spot, Puran Chand was in injured condition and was unconscious. PW-17 Chaman Lal, another brother of the deceased who had come on the spot, had a different story to tell. According to PW-13 Devinder Kumar, when alongwith PW-2 Darshan Kumar, PW-17 Chaman Lal and Mohinder Sharma, he reached the spot, Puran Chand was in injured condition and was unconscious. PW-17 Chaman Lal, another brother of the deceased who had come on the spot, had a different story to tell. He has stated that when he reached on the spot, the deceased asked him to make him stand as he wanted to urinate and that the deceased at that time was crying. He further goes on to state that the deceased was telling that he was beaten by accused Pappu (Kewal Kumar), Bittu (accused Vyas Dev) and two others and that he had named one Tilak also as the assailant. He has denied the suggestion that the deceased at that time was unconscious and unable to talk whereas his brother PW-13 Devinder Kumar has stated that the deceased was unconscious. This witness (PW-17) further claims to have informed the police about the naming of accused persons, one Tilak and indicating one more person as assailants, but it is not so recorded in his statement under Section 161 of the Criminal Procedure Code. Ext. DD. Evidently, this witness who does not find support even from the statement of his own brother PWT-13 Devinder Kumar, cannot be said to have stated the truth, hence utterly unreliable. This type of evidence on the record renders the entire case of the prosecution as highly suspicious and demolishes the value of the above circumstances which are even otherwise not established and are not connecting the accused with causing injuries to the deceased. 31. The wearing apparels of accused Kewal Kumar had been taken in possession on search of his residential quarter vide memo. Ext. PE in the presence of PW-1 Mohinder Singh and PW-10 Bahadur Singh and were identified by PW-5 Roshan Lal. PW-1 Mohinder Singh has supported this recovery and has identified shirt Ext. P-4 and Pazama Ext. P-5 as the clothes of accused Kewal Kumar. He has, however, not stated as to from whom these clothes were taken in possession in village Khairi. PW-10 Bahadur Singh has, however, stated that these clothes were taken in possession from the quarter of Sansar Chand where the accused was present at that time and it was the accused who produced these clothes. 32. He has, however, not stated as to from whom these clothes were taken in possession in village Khairi. PW-10 Bahadur Singh has, however, stated that these clothes were taken in possession from the quarter of Sansar Chand where the accused was present at that time and it was the accused who produced these clothes. 32. Statements of these two witnesses are not trustworthy, primarily, for the reason that both of them are related to the deceased. Secondly, none of them is a resident of village Khairi but are from village Bagdhar. There is no explanation as to why some local person of Khairi was not associated in the search on which these clothes were recovered from the quarter of the accused as mentioned in the memo. Ext. PE. PW-10 Bahadur Singh states about recovery of these clothes from within the quarter of one Sansar Chand and on production by the accused which is not even the case of the prosecution. The recovery vide memo. Ext. PE is, thus, surrounded by suspicious circumstances and, therefore, is not worth reliance. What renders it worthless is the admitted fact that the seal used for sealing these clothes was entrusted to PW-1 Mohinder Singh, already found to be unreliable witness, and such seal was thereafter not produced in the Court, leading to the legitimate inference that possibility of tampering with the case property was there. At the time of recovery as per the contents of Ext. PE, some Wood like stains were noticed on the shirt but not on the Tazama. On analysis in the laboratory, human blood stains were found on both these clothes vide report Ext. PS. No blood stains were found on the Tazama at the time of recovery but were so found on analysis also strengthens the possibility of tampering with these clothes. In any case, the detection of blood stains on these clothes is rendered of no help to the prosecution for the reason that recovery of the clothes from the accused is not established and it is also not established that the accused was wearing these clothes on July 21, 1997 because no evidence has been led to prove that accused Kewal Kumar was wearing these clothes on the relevant day. The prosecution has, thus, failed to prove this circumstance as well. 33. The prosecution has, thus, failed to prove this circumstance as well. 33. Circumstance No. 7 : The relevant conduct imputed to accused Kewal Kumar is that he was arrested from a place called Hutt in Jammu 85 Kashmir on July 22, 1997 though he belongs to Gagduna in District Chamba. The prosecution alleged and the learned Sessions Judge believed that the accused had the guilty conscience that is why he crossed the border of Himachal Pradesh and went over to Jammu and Kashmir and that to prove it there is unimpeachable testimony of PW-21 Budhi Prakash. 34. PW-21 Budhi Prakash has stated that he arrested the accused at Hutt in Jammu 86 Kashmir. Does it mean that the accused was so arrested because he had fled away? The simple and straight answer is no. Accused Kewal Kumar, admittedly, was a driver at the relevant time, therefore, he cannot be expected to stay at Bagdhar the place of the alleged occurrence nor in his home village on July 22, 1997. Though not made clear but it appears that the accused had gone to Hutt alongwith the truck. This can be inferred from the contents of the recovery memo. Ext. PC whereby the truck HP 47-0228 of which the accused was the then driver, was taken in possession by the police at Khairi for the reason that the weapon of offence was concealed in the said truck and it was this truck which was used by accused Kewal Kumar to abscond from the place of occurrence. Thus, if the truck was used by the accused to flee, he must have gone to Hutt in the said truck. But his going to Hutt alongwith the said truck makes his going there in connection with business concerning carriage etc. probable. In any case there is no cogent and reliable evidence that the accused had gone to Hutt in Jammu and Kashmir only with a view to flee from justice. Moreover, accused Kewal Kumar when examined under Section 313 of the Criminal Procedure Code, it was not put to him that he had fled away to Hutt and was arrested there. A circumstance which was not put to the accused to have his explanation about it, cannot be used against the accused. The learned Sessions Judge has, thus, wrongly and illegally relied on this circumstance. 35. A circumstance which was not put to the accused to have his explanation about it, cannot be used against the accused. The learned Sessions Judge has, thus, wrongly and illegally relied on this circumstance. 35. As seen above, the circumstances relied upon by the prosecution to prove the charge against the accused and held by the learned Sessions Judge as established, are far from being proved and, thus, incapable of proving the charge against the accused even collectively, therefore, the conviction and sentence imposed on the two accused cannot be sustained and are liable to be set aside. 36. As a result, both these appeals are allowed. The conviction of and sentence awarded to the two accused/appellants by the learned Sessions Judge are set aside. The accused/appellants are acquitted of the charge against them. 37. The accused/appellants who are undergoing sentence and are in jail, shall be released forthwith, if not required in any other case. Fine if already paid, shall be refunded to them. The case property shall be disposed of as per the orders which may be passed by the trial Court. Appeal allowed.