JUDGMENT Lokeshwar Singh Panta, J. : Seven accused, namely, Kartar Singh (A-l), DilawarSingh (A-2), Manjit Singh son of Jaswant Singh (A-3), Purshotam Singh alias Lali (A-4), Manjit Singh son of Gurbachan Singh (A-5), Majinder Singh son of Jaswant Singh (A-6) and Kulvinder Singh (A-7) stood their trial for offences punishable under Sections 120-B read with Sections 302. and ?92 of the Indian Penal Code, Sections 302 and 392 of the Indian Penal Code and Section 25 of the Indian Arms Act in the Court of Sessions Judge, Shimla in Session Trial No. 25-S/7 of 1997/96. The learned Sessions Judge convicted A-l, A-2 and A-3 under Section 302 read with Section 34 of the Indian Penal Code and Section 392 read with Section 34 of the Indian Penal Code for the commission of murder of Assistant Sub Inspector Besar Singh and robbery of his Revolver, ammunition, golden ring and wrist watch. A-2 Dilawar Singh was also convicted under Section 25 of the Arms Act. All the three convicts were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5.00/- each for the offence under Section 302 read with Section 34 of the Indian Penal Code and in default of payment of fine, they shall suffer simple imprisonment for further period of six months each. For offence under Section 392 read with Section 34 of the Indian Penal Code, three convicts were sentenced to suffer-rigorous imprisonment for five years and to pay a fine of Rs. 500/- each and in default of payment of fine, they shall undergo simple imprisonment for a further period of six months each. A-2 was further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/- and in default thereof, he shall undergo simple imprisonment for a period of one month under Section 25 of the Arms Act The substantive sentences shall run concurrently. A-4, A-5, A-6 and A-7 were acquitted of the charges. 2. Three separate appeals (Criminal Appeal Nos. 409/97, 410/97 and 464/97) have been filed by the convicts in this Court and these have been taken up and heard together arising as they do out of single incident and a common judgment and order dated 29.9.1997 of the learned Sessions Judge, Shimla and they would stand disposed of by this common judgment. 3. 409/97, 410/97 and 464/97) have been filed by the convicts in this Court and these have been taken up and heard together arising as they do out of single incident and a common judgment and order dated 29.9.1997 of the learned Sessions Judge, Shimla and they would stand disposed of by this common judgment. 3. We may now deal with the facts of the case briefly. A-3 and A-6 are real brothers. The} are resident of Aillage Majari, District Bilaspur, Himachal Pradesh. They had a cousin named Gurmit Singh, who had been murdered on 2.8.1993 and four persons of their own village, namely Harpal Singh, Ajmer Singh. Sukhdev Singh and Jasvir Singh were challenged for the murder of said Gurmit Singh in October 1993 and the case was committed to the Sessions Judge. Bilaspur. A-3 is employed as a constable in Himachal Pradesh Police. He alleged to have conspired with A-6 and both of them wanted to avenge the murder of their cousin Gurmit Singh. Some time in the last week of May 1995, they held a talk with A-l, who is also employed as a Head Constable in Himachal Pradesh Police, A-4, A-5 and A-7 who is also employed as constable in the Himachal Pradesh Police and A-2 a resident of Taren Taran, District Amristsar (Punjab) as to finalise their plan of taking avengence. The above-said persons told that fire-arms, especially a revolver would be needed to take the revenge and that the procurement of fire-arms was the first act which was required to be accomplished towards the achievement of the aforesaid object. All the seven accused persons then conspired to procure arms with the object of killing the murderers of Gurmit Singh. They also conspired to commit dacoities. murder and robberies in the State of Himachal Pradesh and Punjab. The conspiracy was alleged to have been hatched at a place called Dhanda, near Jutogh Cantt, Shimla. 4. During the summer of May 1995. Summer Festival was held at Shimla. Several police officials including ASI. Besar Singh of Police Station, Chhota Shimla had been deployed for festival duty. The festival, as usual, used to take place during the night time and the cultural programmes continued till very late in the night. It was on 31.5.1995 ASI. Besar Singh was issued .38 Revolver No. 161-21582 along with 12 rounds from Police Station, Chhota Shimla in connection with festival duty. The festival, as usual, used to take place during the night time and the cultural programmes continued till very late in the night. It was on 31.5.1995 ASI. Besar Singh was issued .38 Revolver No. 161-21582 along with 12 rounds from Police Station, Chhota Shimla in connection with festival duty. He reported for the duty at Ridge Shimla in the evening and remained there late night till 1 P.M. or so. The prosecution alleged that ASI. Besar Singh was spotted in the company of A-l and A-2 at the Ridge on the relevant day and then on the Mall near the Punjab National Bank building. The prosecution case was that Shri Chet Ram (PW-9) Reader to Deputy Superintendent of Police, Shimla spotted ASI. Besar Singh in the company of A-l and A-2 on 31.5.1995 near Indira Gandhi Park close to the Ridge. At the main Bus-stand Cart Road, Shimla, A-3 was seen round 1.30 A.M. during the intervening night of 31.5.1995 and 1.6.1995 by Shri Suresn Kumar (PW-4) constable on duty. Next morning around eight, he dead body of ASI Basar Singh was spotted by a Newspaper Hawker in the shed of Tempo Union, located near Bus Stand. The said Newspaper Hawker informed the In charge, Police Post, Bus Stand, who in turn, sent a constable named Surinder Kumar (PW-1) to verifiy the information. PW . Surinder Kumar identified the dead body of ASI. Besar Singh. He returned to the Police Post and informed the In charge who then informed the Police Station Sadar on very high frequency set. Shri Ravinder Kumar (PW-40) S.H.O., Police Station Sadar accompanied by other police officials arrived at the spot. He was followed by Senior Police Officials, including ASP. Shri Himanshu Mishra. The scene was inspected by the police officials and photographs of the dead body of ASI Besar Singh were taken by Shri Govind Ram (PW-3) who was working as police photographer at Police Reporting Room, The Mall Shimla. On inspection of the dead body of the deceased it was noticed by the police that the wrist watch and gold ring-worn by the deceased had been removed from his dead body. Fire-arm and the ammunition were also missing. On inspection of the dead body of the deceased it was noticed by the police that the wrist watch and gold ring-worn by the deceased had been removed from his dead body. Fire-arm and the ammunition were also missing. A message was immediately flashed to the Director General of Police and Senior Superintendents of Police, Himachal Pradesh and the neighbouring States informing the higher authorities that the Revolver and the ammunition of the police official were missing and that a thorough checking of the persons carrying fire-arms be done. Thereafter inquest report (Ext. PW-2/A) was prepared by ASI Shri Devi Das (PW-3 6) in the presence of SHO Ravinder Kumar. The police officials noticed some abrasions on the neck, the mouth and nostrils of the deceased. It was also noticed that the deceased had several injuries on his testicles and male organ. These injuries appeared to have been caused by means of some sharp edged weapon. The Cap., the stick and office file of the deceased were lying on the counter of Tempo Union Office. PW Shri Ravinder Kumar prepared site plan (Ext. PW-14/A) and took into possession the Cap, stick, office file, plastic glasses, one bottle of some medicine, rod, sample of blood and some pieces of broken bangles vide memo (Ext. PW-l/A) from the spot and those articles were Exhibited P-l to P-8 PW Shri Ravinder Kumar there after, drew up a report Ext. PW-34/A and sent the same to the Police Station for formal registration of the case and on the basis of that report F.I.R. (Ext. PW-34/B) came to be registered at 11.45 A.M. in Police Station Sadar, Shimla by MHC. Bhoop Ram (PW-34). The dead body was sent to the Indira Gandhi Medical College by PW.ASI Shri Devi Dass for post mortem examination. Dr. Shri Suresh Sankhyan (PW-17) conducted the autopsy on 1st June, 1995 at 11.30 A!M. and observed the following antiaiortern injuries on the dead body : (1) Incised wound on the base of scrotum extending on to perineum 7 cm. x 3 cm. x 2cm. with left testicleprotruding out, direction was below upwards as tailing of wound was on upper pole of injury. The testicle grossly contused. (2) Incised wound adjoining injury No. 1, on its right side 3 cm skin deep only, direction above downwards. (3) Incised wound 2 cm. x 0.5 cm. x 3 cm. x 2cm. with left testicleprotruding out, direction was below upwards as tailing of wound was on upper pole of injury. The testicle grossly contused. (2) Incised wound adjoining injury No. 1, on its right side 3 cm skin deep only, direction above downwards. (3) Incised wound 2 cm. x 0.5 cm. skin deep at the root of penis on its left side, direction above downwards. (4) Three parallel incised wounds obliquely placed on the left side of , scrotum adjoining to injury No.3 and measuring 7 cm, 6 cm and 4 cm. directing above downwards and skin deep only. (5) Incised wound 3 cm. skin deep on the right side of scrotum near the root of penis directing below upwards. (6) Incised wound 1-1/2 Cm. on the shaft of penis on its left side directing above downwards. (7) Contusions along the nasal alae with cresentric nail mark on the right nasal ala peri-mortem in nature. (8) Contusion of both upper and lower lips. (9) Contusions of finger tips pattern on the left side of neck "in an area 6 cm x 3 cm. (each contusion bordered by cresentric nail mark) just below the middle of lower border of left mandible. (10)Two nail marks (crescentic) 5 cm. away from the injury No.9, on the . r. • left side of the neck. (11) Contusions of sub-cutaneous tissues and muscles in the neck after reflection of skin on left side corresponding to external injury and in the supra calvicular region both sides. (12) Contusions of the tissues surrounding hyoid bone with fracture of rights greater cornu of hyoid bone in its junction of medial 2/3rd with terminal 1/3. Fracture was inward compression fracture. (13) Constusion of loops of intestines small and large on left side. , (14) Contusion on the kunckles of both hands. 5. In the opinion of the doctor the cause of death was due to asphyxia as a result of antimortem throttling and smothering (combined effect). The probable time that elapsed between injury and death was given few minutes and between death and post mortem 6-12 hours. 6. During the investigation it came to the light that A -3 had been spotted at near Bus Stand twice on the relevant night at 1:30 AM- on 1.6.1995 by PW. Constable Suresh Kumar, who was on patrol duty between Victory Tunnel and Bus Stand. 6. During the investigation it came to the light that A -3 had been spotted at near Bus Stand twice on the relevant night at 1:30 AM- on 1.6.1995 by PW. Constable Suresh Kumar, who was on patrol duty between Victory Tunnel and Bus Stand. He was again spotted near Winter Field building by PW. Suresh Kumar while going on a Motor Cycle with two skins gentlemen riding the pillion. PW. Suresh Kumar alleged to have identified one of those two pillion riders to be A-l, as prior to the incident A-l was posted as Head Constable in Police Department at Shimla. PW. Suresh Kumar also alleged to have identified A-3 because he too is an employee of Himachal Pradesh Police Department. It also came to light during the investigation that the deceased was last seen in the company of A-l and A-2 at the Ridge and then near the Punjab National Bank, The Mall, Shimla on the intervening night of 31.5.1995 and 1.6.1995 after summer festival programme was over. A-3, who was on deputation with C.B.I, and posted at Shimla during those days was called to the Police Station on 2.6.1995 for interogation. After interrogation he was taken into custody and on 10.6.1995, while in police custody, he made disclosure statement (Ext. PW-28/A)4hat while he was driving his Motor Cycle towards Bilaspur side on the relevant night one of the pillion riders, namely, A-2 had thrown a purse on the valley side of the road at a point 1.5 Kilometer beyond Ghanahatti and he could get the same recovered. Pursuant to the alleged statement a purse was recovered which belonged to deceased Besar Singh. A-6 brother of A-3 was also arrested and while he was in police custody he also made a disclosure statement leading to the recovery of one .12 bore country made Pistol from his cattle shed. A-2 alleged to have made disclosure statement (Ext. PW- 15/P) while in police custody which led to the recovery of Revolver and the ammunition which were issued to ASI Besar Singh on the night of 31.5.1995, besides recovery of wrist watch and gold ring which were found missing from the dead body of ASI Besar Singh. A-2 alleged to have made disclosure statement (Ext. PW- 15/P) while in police custody which led to the recovery of Revolver and the ammunition which were issued to ASI Besar Singh on the night of 31.5.1995, besides recovery of wrist watch and gold ring which were found missing from the dead body of ASI Besar Singh. A-l also alleged to have made disclosure statement leading to die recovery of three country made pistols and two rounds from die compound of the cattle shed of A-3 and a letter written to the former by A-2 from his house in Taran town of Punjab State. A-2 made another disclosure statement leading to the recovery of a small sized sword, usually , carried by devout Sikhs, from a place near Ghanahatti and that sword was sent to Forensic Science Laboratory and as per the report (Ext. PZ) it was found to bear stains of human blood. 7. One Bharat Kumar (PW-10) claimed to have witnessed the occurrence, told the police during the investigation that he was sleeping in the compound of Tempo Union on the relevant night and he saw three Sikh gentlemen murdering ASI Besar Singh. Police searched the tenanted premises of A-l in Jutogh Cantt area and recovered one T-shirt and one terrycot shirt stains with blood. These apparels were identified to be the same as were worn by Sikh gentlemen who was accompanying A-l at the relevant time and A-l was himself wearing terrycot shirt. The police collected chemical analysis reports (Exts. PX and PY). On the completion of the investigation, charge sheet came to-be presented against the above-said seven accused reasons in the Court of Judicial Magistrate, Court No.4 who committed the case to the Sessions Court vide order dated 8.12.1995. 8. The case was assigned to the learned Addl. Sessions Judge who charge sheeted A-4, A-5 and A-7 with an offence punishable under Section 120-B read with Section 302 and 392 of the Indian Penal Code. A-6 was charged with an offence punishable under Section 120-B read with Section 392 of the Indian Penal Code and Section 25 of the Indian Arms Act. A-l, A-2 and A-3 were charged with an offence punishable under Section 120-B read with Section 302 and Section 302 of the Indian Penal Code, Section 392 of the Indian Penal Code and Section 25 of the Indian Arms Act. A-l, A-2 and A-3 were charged with an offence punishable under Section 120-B read with Section 302 and Section 302 of the Indian Penal Code, Section 392 of the Indian Penal Code and Section 25 of the Indian Arms Act. The accused persons pleaded not guilty to the charge framed against them and claimed to be tried. 9. The prosecution examined as many as 45 witnesses to substantiate its case besides placing on record documents. The accused in their statements under Section 313 Cr.P.C. denied the allegations appearing against them and pleaded that they have been falsely implicated in the present case. A-1 in reply to question No.1 said that neither he had been taken to his place nor was any search conducted and no letter or envelop was recovered from his house and that envelop (Ext. PW-31/B bears the postal seal dated 11.6.1995 which was a Sunday. He pleaded that his signatures were obtained on some blank papers which were used by the police in the form of disclosure statement His defence was that he was sick from 13.5.1995 to 11.8.1995. He was arrested by the Punjab Police and Himachal Police at Taran Taran. In reply to question No. 99 his answer is as under : "In the year 1987 -88 when I was posted as Moharrar Constable, Police Station Sadar and Ravinder Kumar Inspector was posted as In charge Police Post Lakkar Bazar, Ravinder Kumar was having some disliking for me and used to harass me and hurled abuses on me. I had brought this fact to the notice of the then SHO Jagdish Kumar, several times. Because of the old enmity Ravinder Kumar has got me falsely implicated in another case registered at Police Station Chhota Shimla vide FIR No. 148/95 under Sections 420, 468, 471 I.P.C. and Section 13(2) of the P.C. Act. The date of the alleged FIR is 26.8.1995.1 have been falsely booked in another case under Section 436 IPC of Police Station Bioleauganj vide FIR No. 101/93 dated 23.4.1993. That case has been dismissed by JMIC vide order dated 23.9.1995.1 did not have any enmity with Besar Singh deceased nor did I know him. I do not know the rest of the accused in this case. Sunil Kumar witness is a, known criminal. He used to drive vehicles No. HIS -333 (Ambassador Car) aud HPS -3508 (Maruti Van). That case has been dismissed by JMIC vide order dated 23.9.1995.1 did not have any enmity with Besar Singh deceased nor did I know him. I do not know the rest of the accused in this case. Sunil Kumar witness is a, known criminal. He used to drive vehicles No. HIS -333 (Ambassador Car) aud HPS -3508 (Maruti Van). I searched his vehicles in many cases die detail of which is given in writing Ext. D-8. He is involved in many cases. He is a known sumuggler. I tender in evidence medical certificate Ext. D-9.1 had already submitted copy of Ext D-9 to the S.P: Una under whom I am posted these days. Similarly A-2 denied the prosecution allegations appearing against him and pleaded mat he has been falsely implicated in the present case and he has denied alleged recovery of Revolver, 12 cartridges, wrist watch and golden ring at his instance. In reply to question No.99 he stated as under: "The police physically lifted me from my in-laws house in village Jhabbowal and kept me blind folded for two months. They had been subjecting me to physical torture. I was often given electric shocks and beaten, up. It was only when I was sent to jail after two months then I came to know that I was made an accused in this case." A-3 has also denied the allegations of the prosecution levelled against him and claimed false involvement in the case by the Police. In reply to question No.99 he stated as under: I was arrested by the Police on 2.6.1995 from CBI office Railway Board Building Shimla where I was employed those days. I was arrested at 4.30 P.M. I had been falsely implicated in another case under Section 436 I.P.C. registered vide FIR No. 101/93.1 have already been discharged in that case. Harpal Singhs brother Jarnail Singh is employed as ASI in Himachal Pradesh Police Using the influence of his brother Jarnail Singh, Harpal Singh involved in a murder case in Bilaspur had got me and my brother Manjinder Singh falsely implicated as both of us are PWs in that case. I do not know the other accused except Majinder Singh who is my brother." 10. Though the prosecution introduced one eye witness Sh. I do not know the other accused except Majinder Singh who is my brother." 10. Though the prosecution introduced one eye witness Sh. Bharat (P W-l 0) who claimed to have witnessed that three sikhs murdering ASI Besar Singh in the intervening night on 31.5.1995 and 1.6.1995. His testimony has been rightly disbelieved and discredited by the learned Sessions Judge in paras 39 to 45 of the Judgment and we feel it un-necessary to elaborate the reasoning recorded by the learned Sessions Judge as no reliance has been placed on his testimony by the learned Addl, Advocate General during the course of the arguments. The reasoning recorded by the learned Sessions Judge disbelieving the evidence of this witness was that the witness has invented different story about his presence at the scene and the manner in which the offence alleged to have been committed by the accused-appellants. He has also contradicted himself on all material points relating to the murder of ASI Besar Singh and committing the robbery by the accused-appellants. On a careful scrutiny of the evidence of the alleged eye witness we are of the considered view that he is not a truthful witness and has been introduced by the prosecution simply to support and strengthen its case which was otherwise based upon circumstantial evidence. After excluding the evidence of the alleged eye witness, there remained no eye witness to the commission of the murder and robbery and the case accordingly hinges upon the circumstantial evidence. 11. In the absence of direct evidence relating to the commission of the offences the learned Sessions Judge based his conviction on the circumstantial evidence. The learned Sessions Judge notice the following ciroumstances : (a) Accused Kartar Singh (A-l). and Dilawar Singh (A-2) had been seen atihe Ridge Shimla and the Scandal Point Shimla on the evening of 31.5.1995 by PW. In the absence of direct evidence relating to the commission of the offences the learned Sessions Judge based his conviction on the circumstantial evidence. The learned Sessions Judge notice the following ciroumstances : (a) Accused Kartar Singh (A-l). and Dilawar Singh (A-2) had been seen atihe Ridge Shimla and the Scandal Point Shimla on the evening of 31.5.1995 by PW. Chet Ram; (b) accused Kartar Singh and Dilawar Singh had been spotted hovering around deceased Besar Singh on the relevant night at the Ridge; (c) the deceased was last seen in the company of accused Kartar Singh, Dilawar Singh and Manjit Singh (A-3) son of Jaswant Singh near C.T.O. and the Punjab National Bank Building on the Mall around 1.15 A.M.; (d) Besar Singh on being asked by one of his colleagues, namely S1 Tara Singh, who saw him near the Punjab National Bank building in the company of accused Kartar Singh as to where he was going, said that he was going towards bus stand to get lift in some vehicle up to Police Station, Chhota Shimla; (e) accused Manjit Singh son of Jaswant Singh was spotted at the bus stand at 1.30 A.M. by one of his colleagues, namely Suresh Kumar. PW-4; (f) around 2.30 A.M. PW-4 Suresh Kumar again spotted accused Majit Singh son- of Jaswant Singh going on a motor cycle towards Victory Tunnel and this time accused Kartar Singh and one more sikh gentleman were with him and they were riding the pillion on his Motor Cycle; (g) the time of the death of Besar Singh is between 1.30 A.M. and 2.30 A.M. per post mortem report and it was during this time that Suresh Kumar, PW-4, first spotted accused Manjit Singh son of Jaswant Singh and thereafter saw accused Kartar Singh and Manjit Singh son of Jaswant Singh and one more person coming from bus stand side and going towards Victory Tunnel on a Motor Cycle; (h) the revolver and ammunition which were found missing from the holster and the belt of deceased. Besar Singh have been recovered at the instance of accused Dilawar Singh from his village Jahbowal in Taran area of Amritsar District (i) a wrist watch and a finger ring of the deceased have been got recovered by accused Dilawar Singh; (j) a purse containing two letters bearing signature of deceased Besar Singh has been recovered at the instance of accused Manjit Singh son of Jaswant Singh from near a place called Ganahatti, which is situated on the side of the road connecting Shimla with Bilaspur; (k) The weapon of offence, i.e. a small sized sword has been recovered at the instance of accused Kartar Singh from near the same place where accused Manjit Singh son of Jaswant Singh got recovered the purse of the deceased ; (1) search of the residential quarter of accused Kartar Singh, which is situated in Jutogh Cantt. area, led to the recovery of a shirt and a T-shirt, which were worn by accused Kartar Singh and Dilawar Singh, respectively, when they were seen in the company, of the deceased on the fatelful night and they are having stains of bloody. 12. The learned Sessions Judge relied upon circumstances (a) to (i) noticed above for establishing charges of murder, robbery and recovery of Revolver, ammunition, golden ring and wrist watch of the deceased to bring home the charges against A-l, A-2 and A-3. 13. Mr. F.C. Aggarwal, learned counsel appearing for A-l and A-3 contended that the circumstances from which the conclusion of guilt has been drawn by the learned Sessions Judge has not been fully established by the prosecution and all the facts and circumstances are not of conclusive nature and tendency and that chain of evidence is not complete to hold that within all human probability the crime was committed by the appellants and none else. According to the learned counsel the testimony of the witnesses relied upon by the learned Sessions Judge are full of doubts and contradictions _and they have tried to implicate A-l and A-3 on false accusation with a sole reason that they are prosecution witnesses in some other - case in which relations of A-3 and his brother Majinder Singh co- accused No. 6 was murdered. The learned counsel also contended that once the evidence in regard to the circumstances (J to LI have been disbelieved about the disclosure statement and recoveries of Gatra (a small sized sword), revolver, shirt (KExt. P-9) and T-shirt (Ext. P-10) at the instance of A-l and A-3 connecting then with the commission of the alleged offences, the learned Session Judge has relied upon same part of the evidence - of the those witnesses on the other circumstances which procedure is not permissible under the law basing the conviction of A-l and A-3. He next contended that there is no witness produced by the prosecution to prove that the deceased was last seen in the company of A-l and A-3 at the place of occurrence and the evidence of last seen theory relied upon by the learned Sessions Judge is of no consequence to establish the case of the prosecution and, therefore, the learned Sessions Judge has committed an illegality in relying upon such type of evidence. ,The learned counsel also contended that the medical evidence of the doctor has not supported the case of the prosecution and some injuries were found by the doctor on the private part of the deceased who had a shade character and it has come on record that a case1 under Section 354 Cr.P.C. was registered against the deceased and one corruption case was also pending against him and in these circumstances it may be just possible that the deceased might have been murdered by someone else as he was habitual of indulging himself in sexual activities with woman. In support of his submissions, the learned counsel relied upon in re : Thambi alias Subb araya Pillai, AIR (31)1944 M adras 483; Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 S.C. 637; Balwant Singh v. State, 1976 C.L.R. Delhi 41; Parkash Singh & Am. v. State of Punjab, 1990 (3) R.C.R. 580; Raj Mani v. State, 1997 II AD (Cr.) Delhi 216 and Amarjeet Singh v. State of Punjab, 1994 CAR 29. 14. Mr. v. State of Punjab, 1990 (3) R.C.R. 580; Raj Mani v. State, 1997 II AD (Cr.) Delhi 216 and Amarjeet Singh v. State of Punjab, 1994 CAR 29. 14. Mr. M.S. Chandel, learned counsel appearing on behalf of A-2 argued forcefully that -A2 was not identified by any of the witnesses of the prosecution and he was got only identified from ASI Sh Ram Chander (PW-5) and SI Sh Om Parkash (PW-6) and both these witnesses have never interacted or seen A-2 either before 31.5.1995 or after that date and nor any identification parade was conducted by the prosecution to establish the identity of A-2 and. therefore, in these circumstances the reasoning of the learned Sessions Judge that A-2 was identified by these witnesses is manifestly wrong and illegal and therefore A-2 is entitled for benefit of doubt. He next contended that the involvement of A-2 in the commission of the murder, robbery and recover} of Revolver, golden ring, 12 -ammunition and wrist watch of the deceased at the instance of A-2 has been placed by the learned Sessions Judge on mis appreciation of evidence, and the conviction is based upon suspicion which cannot take the place of proof. He next contended that A-2 was picked up by police official of Himachal Pradesh, namely, Sh Madan Lai on 16.6.1995 as has b^-en stated by Rewail Singh (PW-32) father-in-law of A-2 from village Bhullar District Kapurthala, Punjab and thereafter without showing his arrest by the police he remained in police custody till his arrest was shown on 1.8.1995 by SHO. Ravinder Kumar (PW-40) in Police Station Sadar, Shimla and thereafter his alleged disclosure statement were recorded which were never made by A-2 and on the basis of which recovery of Revolver, ammunition, wrist watch and golden ring were effected from his father-in-laws house in Punjab and these recoveries have been effected not at his instance nor the recovered articles were sealed and identified in accordance with law by the witnesses and, therefore, the chain of circumstantial evidence is completely missing in the present case and that A-2 has been convicted by the learned Sessions Judge on mere suspicion and surmises which is not warranted under law. He has placed reliance on Ronhy alia Ronald James Alwaris & Ors, v. State ofMaharashtra, (1993) 3 Supreme Court Cases 625. 15. Mr. B.P. Sharma, learned Addl. He has placed reliance on Ronhy alia Ronald James Alwaris & Ors, v. State ofMaharashtra, (1993) 3 Supreme Court Cases 625. 15. Mr. B.P. Sharma, learned Addl. Advocate General argued with force that the circumstances established in the case un-equivocally proved the charges against the accused-appellants and on the materials on record it must be held that these charges have been proved beyond reasonable doubt. He has relied upon the testimonies of Suresh Kumar (PW-4), Ram Chander (PW-5), SHO Om Parkash (PW-6) and Tara Singh (PtV-7) who according to the learned Additional Advocate General have proved that the deceased was last seen with A-l and A-3 at Ridge and The Mall Road near C.T.O. Punjab National Bank. He has also relied upon the evidence of Chanchal Singh (PW-I5), Ramesh Chopra (PW-12), Balbinder Singh (PW-16) SHO DWNegi (PW-39), Rewail Singh (PW-32) and Jaswant Singh (PW-33) to support the conviction and sentence of the accused -appellants recorded by the learned Sessions Judge. 16. To appreciate the correctness of the rival submissions and before going into oral, documentary and circumstantial evidence, it would be necessary to state well settled law that when a case of the prosecution is based on the circumstantial evidence, it is incumbent on the prosecution to prove every link thereof and even if one link is found to be missing then in die eyes of law the circumstances cannot be said to have been fully proved and in AIR 1952 S.C. 343, Hanumant Govind Nargundkhar & Anr. v. State of Madhya Pradesh, Mahajan, J. speaking for the Bench has said in para 10 thus : "10. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In AIR 1982 SC 1157, Gambhir v. State of Maharashtra, the Apex Court reiterated the law in the following term : "The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circuristances should be of a definite tendency unerringly pointing towards guilt of the accused ; (3) 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. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be in-consistent with his innocence." In AIR 1990 S.C. 79, Padala VeeraReddyv. State of Andhra Pradesh & Ors., S. Ratnavel Pandian, J. has in para 10 observed : "10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is sought to be drawn must be cognently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 : AIR 1982 SC 1157). See also RamaNandv. State ofHimachal Pradesh (1981) 1 SCC 511 : AIR 1981 SC 738; Prem Thakur v. State of Punjab, (1982) 3 SCC 462 : AIR 1983 SC 61; Earabhadrappa v. State ofKarnataka, (1983) 2 SCC 330 : AIR 1983 SC 446; Gian Singh v. State of Punjab, 1986 Suppl SCC 61( : AIR 1987 SC 1921 ; Batyinder Singh v. State of Punjab, (1987) 1 SCC1 : AIR 1987 SC 350." , 17. In all these decisions, the underlying principles are that in dealing with case based upon evidence of circumstantial nature, circumstances from which conclusion of guilt is drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there should be a chain of evidence so complete as not to leave any. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there should be a chain of evidence so complete as not to leave any. reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that in all human probability the act must have been done by the accused and none else. We are of the view that there is absolutely no dispute to these cardinal principles of law laid down in the decisions referred to above, but the facts and circumstances of each case have to be scrutinized for application of these principles. 18. It is in the light of this legal position about the circumstantial evidence that the evidence on record needs to be scanned and scrutinized to know whether the circumstances relied upon by the prosecution and accepted by the trial Court stand establish in the present case and whether all the proved circumstances considered cummulatively would un-erringly point towards the guilt of the appellants and are inconsistent with their innocence. CIRCUMSTANCE: (a) 19. The prosecution examined Sh. Chet Ram (PW-9) Reader to Deputy Superintendent of Police, Shimla to prove this circumstance. The witness deposed that on 31.5.1995 he accompanied the Deputy Superintendent of Police Shri Brij Lai to the Ridge at 6 P.M. He noticed A-l in the company of another sikh gentleman near Indira Gandhi Park close to the Ridge. Again after about five minutes when he went towards Scandal point he again saw A-l in the company of Sikh gentleman and on inquiry A-l told that he was on leave those days. He stated that a Sikh gentleman who was accompany A-l was wearing T-Shirt (Ext.P-10) while A-l was wearing shirt (Ext. P-9) and he identified Dilawar Singh (A-2) for the first time in the Court. Concedingly no test and identification parade of A-2 had been arranged by the police during the investigation and the identification of A-2 for the first time at the trial does not constitute legal evidence. The recovery of T-Shirt (Ext. P-9) and he identified Dilawar Singh (A-2) for the first time in the Court. Concedingly no test and identification parade of A-2 had been arranged by the police during the investigation and the identification of A-2 for the first time at the trial does not constitute legal evidence. The recovery of T-Shirt (Ext. P-10) from the house of A-l at his instance has not been believed by the learned Sessions Judge and in such circumstances this witness has not identified A-2 to be the same person who was in the company of A-l on 31.5.1995 at 6 P.M. at Ridge or Scandal Point. The evidence of PW. Chet Ram was recorded by the police 5-6 days after the murder and the prosecution has failed to explain as to why and under what circumstances the evidence of mis witness could not be recorded immediately after the crime came to light when the witness was readily available to the police. The learned Sessions Judge has held that most probably it was A-2 who was accompanying A-l on 31.5.1995 and this reasoning with regard to the identity of A-2 is not legally admissible to establish that it was A-2 and none else who was accompanying A-l on 31.5.1995 and was spotted by the witness on Scandal Point or Ridge. Even if the evidence of this witness is accepted with regard to his meeting with A-l on 31.5.1995 at Ridge at 6 P.M. and thereafter near Indira Gandhi Park close to the Ridge, this evidence by itself will not prove that A-l had committed the murder of ASI Besar Singh. In Ronny alia Ronald James Alwaris & Ors. v. State ofMaharashtra (1993) 3 Supreme Court Cases 625, the Apex Court has held that if a witness identifies the accused in Court for the first time after a long time, the probative value of such uncorroborated evidence becomes unsafe to rely on such apiece of evidence. In the present case, the evidence of PW-Chet Ram was recorded by the learned Sessions Judge on 6.9.1996 and it cannot be held that the witness has properly identified A-2 in the Court _and further mere is no evidence on record to show that he was mired up with other sikh gentleman when the witness identified A-2. In the present case, the evidence of PW-Chet Ram was recorded by the learned Sessions Judge on 6.9.1996 and it cannot be held that the witness has properly identified A-2 in the Court _and further mere is no evidence on record to show that he was mired up with other sikh gentleman when the witness identified A-2. Therefore, the first circumstance in our view has not been established by the prosecution and the contrary reasoning of the learned Sessions Judge is not sustainable and acceptable. CIRCUMSTANCE: (b) 20. To prove this circumstance, the prosecution relied upon the evidence of Head Constable Shri Yoginder Pal (PW-8) who has testified that he had been detailed for Summer Festival duty in the year 1995 and mat he was required to remain around the Video Screen. He stated that ASI Besar Singh was also on duty near the Video Screen and that around 12.3 0 A.M. on the night intervening 31.5.1995 and 1.6.1995, A-l came there and had a talk with ASI Besar Singh. He further stated that one Sikh gentleman was also in the company of A-l at that time and that man was wearing a white shirt The witness has not identified A-2 as the person who was in the company of A-l on that day nor he was required to do so while being examined in the Court of Addl. Sessions Judge and the learned Sessions Judge after recording this observation has relied upon the circumstance against A-2 based upon the recovery of Service Revolver of the deceased ?X the instance of A-2 holding that it was A-2 who was in the company of A-l on the relevant nights No doubt, this witness is known to A-l being in the same police force and the witness has stated that he had come to know through his friends that A-l stood posted in District Una at the relevant time. It has come in his cross -examination that he did not know ASI Besar Singh prior to his duty at the Ridge and stated that he had not noticed S.I. Om Parkash (PW-6) and S.I. Tara Singh (PW-7) on duty at the Ridge on 31.5.1995. It has come in his evidence that ASI Besar Singh had left towards Scandal Point alone at about 1 A.M. on 1.6.1995 after the Festival was over. It has come in his evidence that ASI Besar Singh had left towards Scandal Point alone at about 1 A.M. on 1.6.1995 after the Festival was over. From the evidence of this witness at the most it can be presumed that A-l had met ASI Besar Singh during Festival proceedings but it cannot be said that A-l was the last person in the company of ASI Besar Singh who left the place of Festival at 1 or 1.15 A.M. on 1.6.1995. The evidence of this witness by itself is not cinclusive proof of establish that ASI Besar Singh was in the company of A-l and A-2 at the Ridge and thereafter when ASI Besar Singh left the place of Festival and went to Inter State Bus Terminous, both these accused were in his company. CIRCUMSTANCE • (c). 21. Three witnesses, namely, ASI. Ram Chander (PW-5), SI Om Parkash (PW-6) and SI PW. Tara Singh have been examined by the prosecution to establish that the deceased was seen in the company of A-l, A-2 and A-3. The location of Ridge has been noticed by the learned Sessions Judge to the East of C.T.O. and the Punjab National Bank building located on the Mall Road. C.T.O. and Punjab National Bank building are just on the Mall and the distance between the two is close by and the Ridge is at a distance of about 200 to 250 yards from the C.T.O. The learned Sessions Judge also noticed that if one has to go to the Inter State Bus Terminous located at Cart Road from the Ridge the nearest and the most convenient route is to proceed west-wards along the Mall and after passing by the side of Punjab National Bank building and the C.T.O., the person will have to turn to south-wards. Both PWs 5 and 6 stated that they were on duty at the Ridge in connection with Summer Festival and that around 1.15 A.M. on 1.6.1995, when after doing their duty they were returning to the , police lines, Kaithu, they spotted ASI Besar Singh in the company of A-l, A-3 and one more Sikh gentleman and the third Sikh gentleman was identified by both these witnesses in the Court to be A-2. They stated that A-1, A-3 and the third un-known sikh gentleman were having some talk with ASI Besar Singh. They stated that A-1, A-3 and the third un-known sikh gentleman were having some talk with ASI Besar Singh. SI Tara Singh (PW-7) also stated that he was on duty as police official at the Ridge in connection with Summer Festival on the relevant night and that around 1 A.M. on 1.6.1995 when he was going towards police Lines, Kaithu, where he was camping those days, he spotted ASI. Besar Singh in the company of two sikh gentlemen one of whom was A-l, whom he knew on account of his being a personnel of Himachal Pradesh Police, near Punjab National Bank building. He stated that on being asked by him as to where he was going, ASI Besar Singh said that he was going towards bus stand to look for a lift as he wanted to go to Police Station, Chhota Shimla where he was posted during those days. The presence of these police officials witnesses near video screen has been denied by Head Constable PW: Yoginder Pal in his evidence. These three witnesses were not known to A-2 earlier to 1.6.1995 and they have identified A-2 in the Court after a period of more than one year from the date of alleged occurrence. The identification of A-2 by these witnesses is not proper and legal and, therefore, it cannot be held with certainty that it was A-2 who was accompanying other accused on 1.6.1995 at 1.15 A.M. at the Ridge and had a talk with ASI Besar Singh. The testimony of PWs. 5 and 6 are quite contradictory about the piece of clothes put by each of the appellants. PW ASI. Ram Chander has specifically stated that A- 1 had put on turban at that time and whereas A-3 had used a cloth for covering his hairs and the third person accompanying them had put on turban of sky colour. This witness has also stated that he could not say if ASI Besar Singh had pistol or revolver in his possession at the time when he spotted him in the company of the appellants. In his cross-examination PW.SI. Om Parkash has showed his ignorance whether each appellants had put on turban or Patka at the relevant time on their heads. This witness has also stated that he could not say if ASI Besar Singh had pistol or revolver in his possession at the time when he spotted him in the company of the appellants. In his cross-examination PW.SI. Om Parkash has showed his ignorance whether each appellants had put on turban or Patka at the relevant time on their heads. It has come in the evidence of both these witnesses that there were a good number of Sikhs who had come to Shimla to see Summer Festival at the day and that PW AS I Ram Chauder was on duty far away from the main gate whereas ASI Besar Singh was on duty on the main gate of the Summer Festival. It has come in the evidence of PW. Ram Chander that he saw the appellants in the company of ASI Besar Singh from a distance about 10 ft. whereas PW SI. Om Parkash states that he in the company of SI. Ram Chander noticed the appellants in the company of ASI Besar Singh from a distance of about 15-20 yards. It has come in the evidence of PW. Constable Yoginder Pall that ASI Besar Singh was on duty with him at Video Screen and both these witnesses were not seen by him nearby on duty on the relevant day. It has come in the evidence of P W SI Om Parkash that he had not seen A-2 prior to 1.6.1995 nor after 1.6.1995 End that he had seen A-2 in Sub Jail as well as on the way to the Court. It has come in the evidence of PW SI. Om Parkash that he could not tell as to which accused person was talking with whom when he saw them with ASI Besar Singh. SI. It has come in the evidence of PW SI. Om Parkash that he could not tell as to which accused person was talking with whom when he saw them with ASI Besar Singh. SI. PW Tara Singh has given different version about the time of closing of the Summer Festival and according to his version he saw A-l in the company of two other Sikh gentlemen near Punjab National Bank along with ASI Besar Singh on 1.6.1995 at about 1.A.M. It has come in his evidence that on the intervening night of 31.5.1995 and 1.6.1995 there was a Punjabi programme staged in the Summer Festival and that there were a good number of sikh visitors to the Summer Festival on that day./This witness has not said that the other two Sikh gentlemen accompanying A-l and ASI Besar Singh were A-2 and A-3 when he spotted them near Punjab National Bank building. The statement of all these witnesses who are police officials were recorded by the Investigating Officer on 2.6.1995 whereas they had the knowledge as admitted by them in their statements about the death of ASI Besar Singh on 1.6.1995 at about 8 A.M. All these police officials had just remained silent and did not disclose the material and important fact to the Police on 1.6.1995 itself about ASI Besar Singh being spotted by them in the company of the accused appellants on 1.6.1995 at 1.15 A.M. near Punjab National Bank building and the reasoning for not disclosing such vital evidence recorded by the learned Sessions Judge is that on 1.6.1995 during day time all these police officials might have slept and took rest in the Police Lines, Kaithu because they were on night duty in the Summer Festival. It is most relevant to notice that the dead body of AST Besar Singh was noticed on 1.6.1995 at about 8 or 8.15 AM. near main Bus Stand, Shimla in Tempo Union Office which is a open space and in his inquest report (Ext. PW-2/A) ASI Devi Dass noticed ihat when he reached at the spot, he found the dead body of ASI Besar Singh lying on the spot and the zip of his pant was open and his testicles were found injured and that, fresh blood was oozing from the said injury. PW-2/A) ASI Devi Dass noticed ihat when he reached at the spot, he found the dead body of ASI Besar Singh lying on the spot and the zip of his pant was open and his testicles were found injured and that, fresh blood was oozing from the said injury. The dead body of deceased ASI Besar Singh was found in Inter State Bus Terminus at the Cart Road. The post mortem of the dead body of the deceased was conducted by Dr. PW Suresh Sankhayan at 12 noon on 1.6.1995 and from the post mortem report (Exttx PW. 17/A) it finds mention that the information was given to the doctor by the police that the deceased was on duty up to 1.30 AM. on 1.6.1995 in Summer Festival. If the time of 1.30 AM given to the doctor by the Police is accepted to be correct which we do accept, then the evidence of the police officials that the deceased was last seen with the accused on 1.6.1-995 at 1 or 1.15 A.M. at Punjab National Bank building or C.T.O. cannot be believed and accepted. The doctor has given the cause of death of the deceased 4ue to asphyxia as a result of antimortem, throtling and smothering (combined effect) and probable time that elapsed between injury and death has been given few minutes whereas between death and post mortem 6-12 hours. From the medical evidence it is clear that A SI Besar Singh had died within few minutes before 8/8.15 AM when his dead body was noticed and it cannot be said that immediately before the death of ASI Besar Singh the accused persons were last seen with the deceased. Another Vital and important observation of the doctor m the postmortem report is that the injuries on the external genitalia was suggestive of sexual jealousy or sexual revenge which shows that the injuries on the testicles with sharp edged weapon was inflicted by someone due to sexual revenge or sexual jealousy. The said injury was fresh as noticed by PW. Devi Dass in his inquest report when he visited the spot after receiving the information and blood was oozing out of the injury which means that the deceased had died a few m mutes after he received fatal injury. The said injury was fresh as noticed by PW. Devi Dass in his inquest report when he visited the spot after receiving the information and blood was oozing out of the injury which means that the deceased had died a few m mutes after he received fatal injury. The prosecution evidence on this circumstances appears to be not probable and it is un-believable for the other reasons which shall be dealt with lateron when circumstances (f) will be dealt with. There is not an iota of evidence on record to establish that the accused persons accompanied ASI Besar Singh from the Mall Road to the Inter State Bus Terminus and they were seen together by any of the witnesses near the scene of occurrence at the relevant time and day when his dead body was noticed. CIRCUMSTANCE : (d) : 22. The learned Sessions Judge while dealing with circumstance (d) has relied upon the evidence of PW.SI Tara Singh who said that when he spotted ASI Besar Singh near Punjab National Bank building in the company of A-l and another sikh gentleman, he asked ASI Besar Singh as to where he was going and in reply he said that he (Besar Singh) was going towards Bus Stand to get lift for reaching Police Station, Chhota Shimla. On the basis of this statement, the learned Sessions Judge held that legitimately it be presumed that the deceased went to the site of the murder accompanied by A-l and A-3 and another sikh gentleman who were spotted with him at the Mall. This reasoning of the learned Sessions Judge is based on the presumption and not on evidence to prove that ASI Besar Singh was accompanied by the accused persons from the Mall Road to Bus Stand and thereafter he was found dead at the scene of occurrence. In the absence of any evidence to this effect, he conclusion on this circumstances arrived at by the learned Sessions, Judge is un-sustainable. It is settled law that in a criminal case the conclusion about guilt of the accused cannot be entirely based up on presumption unless such presumption is legally proved. CIRCUMSTANCE • (e) 23. To prove this circumstance, the prosecution has mainly relied upon the evidence of Constable Suresii Kumar (PW-4) who was on patrol duty in the area from Bus Stand to Victory Tunnel. CIRCUMSTANCE • (e) 23. To prove this circumstance, the prosecution has mainly relied upon the evidence of Constable Suresii Kumar (PW-4) who was on patrol duty in the area from Bus Stand to Victory Tunnel. He deposed that on the intervening night of 31.5.1995 .and 1.6.1995 he was on duty from 11 P.M. to 5 AM. and that at 1.30 AM he saw A-3 who is Constable in Himachal Pradesh Police but was on deputation with C.B.I, during those days, in the area of 3us Stand, Shimla and that on inquiry A-3 told that he was expecting some guests from his village in Bilaspur District which fact undoubtedly was not disclosed to the Investigating Officer by this important and material witness on 1.6.1995 itself when it has come on record that he was present for making statement and his evidence was recorded by the Investigating Officer on 2.6.1995. Again, the learned Sessions Judge has observed that presumably since the witness was n night duty and he had been sleeping during the day time on 1.6.1995 and that is why he could not disclose this fact to the Investigating Officer on 1.6.1995. This reasoning, in our view, is not convincing. If his evidence is accepted that at 1.30 AM on 6.1.1995 A-3 was seen by the witness at Bus Stand, how could A-3 be present at the Mall Road at 1/1.15 or 1.30 AM as stated by PWs 5, 6 and 7 in their depositions noticed in circumstance (c). Even if, we presume that A-3 was at the Bus Stand at 1.30 AM on 1.6.1995, as stated by PW Suresh Kumar his presence by itself would not prove the case of the prosecution that A-3 was in the company of ASI Besar Singh at Bus Stand at 1.30 AM on 1.6.1995. This circumstance has not been-established by the prosecution by leading cogent and convincing evidence to complete the link in the circumstantial evidence. CIRCUMSTANCE (f) . 24. The prosecution again relied upon the evidence of PW Suresh Kumar who has stated that at 2.30 AM. This circumstance has not been-established by the prosecution by leading cogent and convincing evidence to complete the link in the circumstantial evidence. CIRCUMSTANCE (f) . 24. The prosecution again relied upon the evidence of PW Suresh Kumar who has stated that at 2.30 AM. on 1.6.1995 when he was returning from the Winter Field side towards Bus Stand he saw A-3 coming from Bus Stand side on the Motor Cycle carrying A-l and one more sikh gentleman on his Motor Cycle and the learned Sessions Judge based upon his evidence concluded that the accused persons were seen by this witness going on Motor Cycle towards Victor} Tunnel around 2.30 AM. We have noticed from his cross-examination that he could not give the registration number of the Motor Cycle. It has come in his evidence that one Home Guard, namely, Rajmder Singh Was also on dun- at Beat No. 11 at that time. It has come in his evidence that on 1.6.1995 at about 9.10 AM one constable had informed him that in his Beat ASI Besar Singh stood murdered. This witness could not identify the colors of turbans and clothes of A-l and A-2. It has come in his evidence that he did not disclose to anyone having met A-l and A-3 .at Bus Stand on that night even after he stood informed of the murder of ASI Besar Singh. The evidence of this witness is not conclusive prove of the fact that the accused persons had left the place of occurrence after murdering ASI Besar Singh and if it is presumed that they had crossed the Bus Stand at 2.30 AM on the relevant day, this fact by itself will not connect the accused - appellants with the commission of the offence alleged against them. The learned Sessions Judge has not believed the evidence of the prosecution in regard to circumstances (g to i) about throwing and the recovery of purse and Gatra (small sized sword) by A-3 near Ghanahati while the accused - appellants were going towards that side from Card Road, Shimla on the Motor Cycle. The learned Sessions Judge again has not relied upon the evidence of the prosecution about the recovery of Gatra (small sized sword) at Ghanahati on Shimla - Kalka road which according to the prosecution story was used by the accused-appellants inflicting injuries on the testicles of the deceased. The learned Sessions Judge again has not relied upon the evidence of the prosecution about the recovery of Gatra (small sized sword) at Ghanahati on Shimla - Kalka road which according to the prosecution story was used by the accused-appellants inflicting injuries on the testicles of the deceased. The learned Sessions Judge again has doubted the recovery of blood stained shirt (Ext. P-9) and T-Shirt (Ext. P. 10) allegedly recovered from the house of A-l which was worn by A-l and A-3 at the time of occurrence. But from the Chemical Examiners report these clothes were blood stains but he could not determine the origin of the blood and the prosecution has not been able to prove that A-1 and A-3 were allegedly wearing those clothes at the time of the occurrence. Thus, this circumstance coupled with other circumstances will not complete the chain of circumstantial evidence brought on record by the prosecution against the accused-appellants. CIRCUMSTANCE: (g) 25. The Oral evidence of Dr. Suresh Sankhyan and post mortem report (Ext. PW- 17/A) would go to show that the time gap between the death and post mortem was 6 to 12 hours meaning thereby that the murder had been committed some time between 12 o’clock in the night of30.5.1995 and around 6 AM on 1.6.1995. If the timing of death as opined by the doctor is taken it would go to show that ASI Besar Singh could not have been murdered at 1.30 AM on 1.6.1995 as per the prosecution evidence, he was on duty at Ridge and was seen alive at 1/1.15 AM or 1.30 AM by the prosecution witnesses. The doctor has also opined that fresh blood was seen oozing out of the injury on the private part of the deceased at the time of conducting post mortem at 12 noon on 1.6.1995 and the probable time that elapsed between injury and death is few minutes. The reasoning of the learned Sessions Judge that since the accused were seen near the Bus Stand between 1.30 AM and 2.30 AM and, therefore, they were held liable for the murder of ASI Besar Singh does not fit in the prosecution case. The reasoning of the learned Sessions Judge that since the accused were seen near the Bus Stand between 1.30 AM and 2.30 AM and, therefore, they were held liable for the murder of ASI Besar Singh does not fit in the prosecution case. Again if the murder had taken place at 2.30 AM, there could not be possibility of fresh blood coming out of the private part of the deceased from the injuries inflicted upon him at 8.15 AM as noticed in the inquest by ASI Devi Dass and at 12-noon noticed by the doctor. In the teeth of the medical evidence, it cannot be held that ASI Besar Singh was murdered between 1.30 AM or 2.30 AM on 1.6.1995 as alleged by the prosecution connecting the accused -appellants for the commission of the alleged crime. The oral evidence is absolutely contrary to the medical evidence and therefore the various of the witnesses death with in the other circumstances are un-be-lieveable and un-reliable. CTRCUMSTANCE: (h) : 26. Four witnesses, namely, Ramesh Chopra, (PW-12), Chanchal Singh (PW-15), Balvinder Singh (PW-16) and Shri SHO D.W.Negi (PW-39) have been examined by the prosecution to prove this circumstances which has been mainly relied upon by die learned Sessions Judge while convicting the accused-appellants. PW Ramesh Chopra stated that on 2.8.1995 he was called to the Police Station Sadar, Shimla when A-2 was interrogated by the police in his presence and the said accused made disclosure statement that he had kept burried one Revolver and 12 rounds in a heap of garbage in village Jabhowal District Amritsar (Punjab) behind the house of his in-laws and he could get the same recovered. He further stated that Dilawar Singh (A-2) further disclosed that he had given a wrist watch of HMT make and a golden ring to his brother-in-law Lakhvinder Singh and could get the same recovered from him. The disclosure statement of A-2 was reduced into writing and exhibited PW-12/A. PW Shri D.W. Negi has also stated that the disclosure statement was made to him by A-2, and the Revolver and the rounds had been recovered, pursuant to such disclosure statement in the presence of PWs Chanchal Singh and Balvinder Singh who are residents of the same village. The disclosure statement of A-2 was reduced into writing and exhibited PW-12/A. PW Shri D.W. Negi has also stated that the disclosure statement was made to him by A-2, and the Revolver and the rounds had been recovered, pursuant to such disclosure statement in the presence of PWs Chanchal Singh and Balvinder Singh who are residents of the same village. Both the recovery witnesses have stated that on 4.8.1995 at 7 AM Dilawar Singh had been brought to the village in the custody of the police and that In charge, Police Post, Tangra (District Amritsar) Shri Gopal Chand was also with them. They have stated that the accused led the police party to a ‘Kup (dome typed thatched structnre rising from the level of the ground in which chaff of wheat crop is stored by the villagers) and by making a hole at a height of about five feet in that "Kup", he took his arm inside that Kup and brought out a polythene bag containing a Revolver and 12 rounds and that the Revolver and the rounds were. taken into possession vide memo (Ext PW-15/A). The Revolver was produced and marked Ext. P. 14 and cartridges Ext. P-15. Both these recovery witnesses have denied in their cross- examination the suggestion of the defence that they were touts of the police. 27. The Rscolver was entrusted to ASI Besar Singh by MHC Ramesh Chant (PW-27) from Police Station, Chhota Shimla on 30.5.1995 vide rupat rojnamcha No.23 dated 31.5.1995 (Ext. PW-27/A).-From the perusal of this document it is seen that no official Revolver was issued to ASI Beant Singh from Police Station but one Revolver No.161/21582.38 bore and 12 cartridges which were under entrustment in the Police Station as trust property kept in the Malkhana by the Police was given to ASI Beant Singh by MHC Ramesh Chand. It is not known as to who was the owner of the said Revolver and ammunition and why and with whom this property was kept in the Malkhana of the Police Station is entrustment and how MHC Ramesh Chand could hand over the entrusted property from Malkhana to ASI Besar Singh for official use. All these sets of facts could go to show that the Revolver and ammunition issued to ASI Besar Singh on 30.5.1995 from Police Station, Chhota Shimla was not official ammunition of the Government. All these sets of facts could go to show that the Revolver and ammunition issued to ASI Besar Singh on 30.5.1995 from Police Station, Chhota Shimla was not official ammunition of the Government. It has come in the evidence of PW Rawail Singh father-in-law of A-2 who was declared hostile by the prosecution and the cross-examined at length by the Public prosecutor that Dilawar Singh had been taken into custody by the police from his village on 16.6.1995 jointly by the Punjab and Himachal Pradesh Police when he was sleeping during night. He has also stated that about 20-25 Police Officials might have been there in two jeeps when they came to his house. He denied the suggestion of the prosecution that S.H.O. Police Station, Shimla had told him that Dilawar Singh had made a statement that he had given a wrist watch and gold ring to his sister living in his village, Bhullar. He also denied the suggestion that SHO asked him t"> produce the said wrist watch and the ring. In his cross-examination of the defence he has admitted that Dilwar Singh has been physically lifted jointly by the Punjab and Himachal Police and that he had sent a telegram to the High Courts of Punjab and Haryana as also Himachal Pradesh when his son-in-laws was not traced out for a number of days. We have examined the disclosure statement Ext. PW-12 /A alleged to have been made by,A-2 at Police Station, Shimla and found that the number and bore of the Revolver have not been mentioned. The arrest of A-2 had been shown by the Police on 1.8.1995 when he was produced by Head Constable Madan Lai before SHO Ravinder Kumar (PW- 40) at Police Station Sadar, Shimla. PW. Ravinder Kumar stated that Head Constable Madan lal brought A-2 from Punjab. In recovery memo (Ext. PW- 15/A) prepared by SHO DW. Negi on 4.8.1995 which is written in English, the number of the Revolver has been given but number of bore was initially written something else which is corrected as .38. PW. Chanchal Singh one of the recovery witness of the Revolver has stated that one pistol was recovered by-Dilawar Singh from the heap of Chaff. In his cross-examination he has admitted that he could not recognised Dilawar Singh nor he could identify him in the Court. PW. Chanchal Singh one of the recovery witness of the Revolver has stated that one pistol was recovered by-Dilawar Singh from the heap of Chaff. In his cross-examination he has admitted that he could not recognised Dilawar Singh nor he could identify him in the Court. He has also admitted in his cross-examination that at the time of the recovery he had seen number of the Revolver but he had not disclose the said number in his statement nor he could notice any other mark of identification on the Revolver. He has also admitted that he had travelled from his house to the site near the heap of chaff in vehicle of the Punjab Police and at the time of recovery of articles it had been raining and that was there a son that they had entered the house of Re wail Singh and after taking tea in the Verandah of his house the recovery was effected. He has also admitted that at the time of the recovery Dilawar Singh stood hand cuffed by the* Police and the chain had not been removed in his presence at the site of the recovery. He has specifically admitted i that the Revolver and the Cartridges recovered by the Police had not been sealed in a packet in his presence. He has also admitted that his house is at a distance of about 3 K.M. from the house of Rewail Singh father-in-law of accused Dilwar Singh and according to him some papers have been prepared by the Police in Hindi and some papers in English whereas he has signed the recovery memo in Punjabi as he has studied up to 3rd standard. It has come in his evidence that no cutting was carried out in any of the document prepared in his presence whereas from recovery memo (Ext. PW-15/A) which is prepared in English in the middle of the contents of the document .3 8 has been found over written. PW. Balvinder Singh could not give the date on which accused Dilawar Singh recovered the Revolver and ammunition. It has come in his cross-examination that recovery operation had taken about two hours but PW. Chanchal Singh has stated that the recovery operation was concluded within 1/2 hours. PW. Balvinder Singh could not give the date on which accused Dilawar Singh recovered the Revolver and ammunition. It has come in his cross-examination that recovery operation had taken about two hours but PW. Chanchal Singh has stated that the recovery operation was concluded within 1/2 hours. He has also admitted mat he was taken to the scene of the recovery by In charge Police Post, Tangra in a Gypsy and there were in all 20 police officials present at the time of the recovery who recovery who encirculed the area of the recovery and no other villager was associated by the Police in the recovery. He has admitted that cutting, if any, of bore number of the Revolver in recovery memo (Ext. PW-15/A) had not been done in his presence and might have been carried out lateron and at the time of the recovery of the Revolver he had not read its number. No doubt, the recovery witnesses and SHO D.W. Negi have stated that .38 Revolver and 12 Cartridges . were recovered at the instance of A-2 from the heap of Kup in the village of father-in-law of the accused, but the said recovery is not free from doubt. It has come in the evidence of PW. Ravinder Kumar S.H.OT Police Station Sadar, Shimla that A- 2 was arrested by him on 1.8.1995 at Police Station Sadar, Shimla when he was produced by Head Constable Madan Lal who brought him from Punjab. There is no evidence on record to prove who authorised Constable Madan Lal to go to Punjab in search of A-2 and on which day he traced out A-2 and from which place he was brought to Shimla on 1.8.1995. Head Constable Madan Lal was the best witness who could have explained all these facts and circumstances but he was not produced by the prosecution for the reason best known to it and from the material on record the arrest of A- 2 before 1.8.1995 has remained un-disclosed mystry. In AIR (31) 1944 Madras 483 (supra) it has been held that evidence of arrest should not only state the date, but the place of tip arrest. It was also held that it may be and of the greatest importance, frequently in the interests of the accused, for it to be known where and when the arrest is made. In AIR (31) 1944 Madras 483 (supra) it has been held that evidence of arrest should not only state the date, but the place of tip arrest. It was also held that it may be and of the greatest importance, frequently in the interests of the accused, for it to be known where and when the arrest is made. It proceed further that an arrest made soon after the occurrence in the accused own village may put one complexion on a case, while an arrest of the accused made long after in a distant place may have a different significance. In the present case the prosecution version was that A-2 had been arrested on 1.8.1995 in Police Station Sadar, Shimla and his disclosure statement was recorded on 2.8.1995 and in pursuant thereto the recovery of Revolver and Cartridges at his instance was effected on 4.8.1995 in the village of his father-in-law which is situated in Amritsar District and that the alleged offence of murder and robbery of the Revolver and Cartridges of AS1 Besar Singh was committed in the intervening night of 31.5.1995 and 1.6.1995. In the teeth of the settled legal position in AIR 1944 Madras 483 the arrest of A-2 on 1.8.1995 at Shimla, his disclosure statement and recovery etc. are ail not free from doubts and A-2 is entitled to the benefit of doubts in these circumstances. It has come in the evidence of the recovery witnesses that the alleged recovery of Revolver and 12-Cartndges were not sealed by DW. Degi at the spot. la. Amarjeet Singh v. State of Punjab, 1994 CAR 29 the Apex Court has held that the non-sealing of the Revolver or the handing over of the same to some other Police official or a private person, who has not been examined are of non consequence. The non-sealing of the Revolver at the spot is a serious infirmity because the possibility of tampering over the weapon cannot be ruled out. The legal position settled in this case by the Apex Court has not been properly and correctly considered by the learned Sessions Judge while dealing with this aspect of the matter in para -68 of the judgment. The legal position settled in this case by the Apex Court has not been properly and correctly considered by the learned Sessions Judge while dealing with this aspect of the matter in para -68 of the judgment. Further the recovery of fire-arm and ammunition at the insance of A-2 cannot be held to be in his exclusive physical and cautious possession as the same was recovered from a Kup in the open place belonging to his father-in-law. In order to examine the correctness of the recovery of fire-arm and ammunition at the instance of A-2 we have scrutinised the application dated 2.8.1995 submitted by Inspector/ SHO, Police Station Sadar to the Chief Judicial Magistrate, Shimla which is placed on challan file. From the perusal of the contents of tie said application it finds mention that Head Constable Sukh Pal and Head Constable madan Lai were sent to arrest A-2 who is the resident of Baneksubha Singh Police Station Kharaksahib District Amritsar, Punjab with warrant of arrest issued by the Chief Judicial Magistrate and A-2 was arrested by diem at Anandpur Sahib (Punjab) and was brought to Shimla at 8.20 P.M. on 1 8.1995. If this document is believed, it is manifestly clear that A-2 was arrested at Anandpur Sahib in Punjab State by the above-said two Head Constables on some other date and time and his arrest had been shown in Police Station Sadar, Shimla only on 1.8.1995 for some extraneous reason and in such circumstances the story of disclosure statement and the recovery pursuant to such disclosure statement of fire-arm and ammunition makes the prosecution case more doubtful. From the police challan submitted under Section 173 Cr.P.C. it appears that initially the case of the prosecution was that the accused -appellants along with ASI Besar Singh jointly had consumed liquor at the place of crime and thereafter he was murdered and robbed by the accused persons seven in number. It appears the after the post mortem report and reports from the Forensic Science Laboratory no alcohol was found on the viscera of deceased and that in order to screen of the initial theory projected by the prosecution, the investigation was conducted on some different footings which are presently reflected in the prosecution evidence. It appears the after the post mortem report and reports from the Forensic Science Laboratory no alcohol was found on the viscera of deceased and that in order to screen of the initial theory projected by the prosecution, the investigation was conducted on some different footings which are presently reflected in the prosecution evidence. It has come in the evidence of the Investigating Officer SHO Ravinder Kumar that on the scene of occurrence some broken bangles were found and the Investigating Officer thereafter has not cared to probe into the matter further to find out as to how and in what circumstances the broken bangles were recovered from the scene of crime and who was the person to whom those bangles belonged. It appears that the true facts were not brought on record be the prosecution in the investigation and the investigation in this case is not free from doubts about the presence of some woman at the scene of crime. From the explanation given by the accused-appellants in their statements under Sect on 313 Cr.P.C. it appears that the deceased was not holding good moral character and the defence version of the accused -appellants has been corroborated by SHO DW. Negi who deposed that ASI Besar Singh was facing a trial in a corruption case and also in a case under Section 354 Cr. P.C, for the above -stated reasons, we do not agree with the reasoning of the learned Sessions Judge that the recoveries of the fire-arm and ammunition have been legally proved by the prosecution connection A-2 with the commission of murder and robbery of these articles. The evidence noticed and discussed by us is very shaky and slender and no conviction can sustain on such evidence against the accused -appellants. CIRCUMSTANCE r (i) 28. The last circumstances relied upon by the learned Sessions Judge connecting A-2 with the recovery of wrist watch and golden ring belonging to the deceased, in our view, has not been conclusively proved by the prosecution. To prove this circumstances, the prosecution examined SHO DW. Negi, PW. Rewail Singh father-in-law of A-2 and PW Ramesh Chopra. CIRCUMSTANCE r (i) 28. The last circumstances relied upon by the learned Sessions Judge connecting A-2 with the recovery of wrist watch and golden ring belonging to the deceased, in our view, has not been conclusively proved by the prosecution. To prove this circumstances, the prosecution examined SHO DW. Negi, PW. Rewail Singh father-in-law of A-2 and PW Ramesh Chopra. In his deposition PW Ramesh Chopra stated that in his presence and in the presnece of one Des Raj, Dilawar Singh disclosed that he had given one Des Raj, Dilawar Singh disclosed that he had given one golden ring and one wrist watch to Lakhvinder Singh his brother-in-law of village Bhullar (Punjab) and he identified his signature on disclosure statement (Ext PW-12/A). This witness was summoned by the Police from Lower Bazar, Shimla and according to his version A-2 was interrogated by three police officials in the Police Station Sadar, Shimla in between 5 and 5.30 PM approximately on 2,8.1995. He has stated in his cross-examination that Dilawar Singh had not disclosed the site where Lakhvinder Singh kept the wrist watch and golden ring. PW. Rewail Singh father-in-law -of accused Dilawar Singh had denied the recovery of wrist watch and golden ring at the instance of accused Dilawar Singh by the police from his house. The second witness Des Raj has not been examined by the prosecution to corroborate the version of PW. Ramesh Chopra. To prove the recovery of wrist watch and golden ring the prosecution has examined Jaswant Singh (PW-33), a resident of village Bhullar District Kapurthala (Punjab) who has turned hostile to the prosecution. The said witness was cross-examined at length By the Public Prosecutor. In his cross-examination he has denied the suggestion that he along with Harjinder Singh were called by SHO. Shimla to the house of Rewail Singhs cousin sister. He has stated that recovery memo (Ext. PW-32/A) was signed by said Harjinder Singh when it had already been written and no proceedings were conducted by the Police in their pretence nor the said document was signed by PW. Rewail Singh. He has also denied suggestion of the prosecution that the contents of Ext. PW-32/A were read over and explained to him. He has again denied the suggestion of the prosecution that PW. Rewail Singh produced wrist watch and golden ring from a lady purse which was kept in an Almirah. SHO DW. Rewail Singh. He has also denied suggestion of the prosecution that the contents of Ext. PW-32/A were read over and explained to him. He has again denied the suggestion of the prosecution that PW. Rewail Singh produced wrist watch and golden ring from a lady purse which was kept in an Almirah. SHO DW. Negi has stated that accused Dilawar Singh took Mm to a house where his father-in-law was present and the accused had some talk with his father-in-law Rewail Singh, who then went inside a room opened an Almirah from which he took out a purse and from that purse he produced a wrist watch (Ext P-12) and a ring (Ext. P-13). The deposition of this witness has not been corroborated by independent witnesses PWs Rewail Singh and Jaswant Singh. There is no evidence on record adduced by the prosecution to prove that the golden ring was signified with some identification mark and nor in the inquest report the make Investigating Officer. The wrist watch and golden ring was produced by the police before S.D.M. (Urban), Shimla who summoned Shri Kuldip Rao (PW-14) on 15.8.1995 to identify wrist watch and golden ring. Dr. Kuldip Rao has stated that deceased ASI Besar Singh was his brother-in- law. From the evidence of P W. Dr. Kuldip Rao it is clear that the articles of same and similar identification by the S.D.M. at the time of identification of golden ring and wrist watch. It has come in his cross- examination that the S.D:M. conducted proceedings in his Chamber in the presence of four person comprising S.D.M., the witness SHO D.W. Negi and another official. From the evidence it appears that, identification of recovered articles have been conducted by the S.D.M. in a routine and perfunctory manner without mixing those articles with some other articles of the same and similar make. The golden ring produced before the S.D.M. does not signify any special mark which would prove that the said golden ring belonged to the deceased. Similarly, the HMT watch produced before the S.D.M. was not mixed up with any other watches of the same make to enable Dr. Kuldip Rao to identify the watch belonging to the deceased. The golden ring produced before the S.D.M. does not signify any special mark which would prove that the said golden ring belonged to the deceased. Similarly, the HMT watch produced before the S.D.M. was not mixed up with any other watches of the same make to enable Dr. Kuldip Rao to identify the watch belonging to the deceased. Therefore, in the circumstances the identification of the wrist watch and golden ring allegedly belonging to the deceased is of no consequence to establish that these articles were robbed by the accused-appellants from the possession of the deceased after committing his murder and that they were recovered by the Police at the instance of A-2 and the identification of the golden ring and wrist watch as such is of to value to complete the chain of circumstantial evidence. 29. The learned Sessions Judge in para -91 of the judgment had said that it was true that some of the recoveries allegedly made at the instance of accused persons appeared to be stage - managed and it was also-true that the witnesses of the conspiracy and also the eye witness of the murder appeared to by procured witnesses, but in the face of these observations the learned Sessions Judge has relied upon the evidence of those very witnesses and convicted the accused-appellants upon evidence which is not cogent and convincing. After analysing the entire evidence both oral and documentary discussed here-in-above, we are of the view that the investigation of the case is not fair and straight. The prosecution has tried to built-up a case against the accused -appellants on some hypothesis, surmises, assumptions and presumption which cannot be accepted for the reasons explained herein-above. The circumstantial evidence relied upon by the prosecution and taken into consideration by the learned Sessions Judge L not convincing and impeachable and it inspire no confidence and that as the investigation in the present case is found to be tainted, the whole of the prosecution case becomes open to serious doubts and challenges. The prosecution has tried to suppress and conceal the true facts of the case and the accused appellant can not be held guilty based upon such circumstantial evidence. The prosecution has tried to suppress and conceal the true facts of the case and the accused appellant can not be held guilty based upon such circumstantial evidence. The Investigating Officer has not tried to investigate the circumstances as to how the broken bangles were found lying on the spot near the dead body of the deceased and how the deceased received injuries on his private part and who could be the real culprits. From the circumstances a presumption can be drawn that the deceased might have been killed by someone else and not by the accused -appellants. The recovery of Revolver, ammunition, wrist watch and golden ring as stated- above, even if believed would not be sufficient to sustain the conviction. All that can be said for the prosecution is that it may be that the accused-appellants had committed that crime. But as observed by Honble Gajenderagadkar, J.(as he then was) in Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 Supreme Court 637, there is a long way to travel between may be true and must to true and this whole distance has to be travelled by the prosecution. In the view we have taken of the evidence we are of the view that the only safer course would be to reject the prosecution case as not proved and the prosecution cannot be said to have established the circumstances against the accused-appellants beyond shadow of doubt, so as to complete the chain of circumstances pointing to their guilt. In our opinion, the learned Sessions Judge, on the appreciation of the evidence on record with reference to the legal position, stated- above, cannot be said to be justified in recording a finding of guilt against the accused-appellants and the finding of guilt and the sentence imposed would be liable to be set aside. The result is unfortunate, but it cannot be helped. It is pity that a brutal murder is going un-punished. 30. In the result, these appeals succeed. The findings of guilt recorded and the sentence imposed vide impugned judgment dated 29.9.1997 in Sessions Trial No. 25-S/7 of 1997/96 are hereby set aside and the three accused-appellants are given benefit of doubts. They are directed to be set at liberty, if not wanted for any other case.