JUDGMENT M.R. Verma, J,—Being aggrieved, the appellants/accused persons (hereinafter referred to as the accused) have preferred these four separate appeals against the judgment dated 22.12.1997 passed by the learned Sessions Judge, Shimla, whereby they have been convicted and sentenced as under : Name of accused Conviction Sentence awarded 1. Uttam Kumar (i) under Section 120-B read with Section 302 and 382 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (ii) under Section 302 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (iii) under Section 382 IPC Rigorous imprisonment for 5 years and fine of Rs. 2,000/-. In default of payment of fine, rigorous imprisonment for six months. (iv) under Section 404 IPC rigorous imprisonment for one year and fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for three months. (v) under Section 201 read with Sections 302, 382, 404 and 120-B IPC Rigorous imprisonment for two years and fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for six months. 2. Suresh Kumar (i) under Section 120-B read with Section 302 and and 382 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (ii) under Section 302 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (iii) under Section 382 IPC Rigorous imprisonment for 5 years and fine of Rs. 2,000/-. In default of payment of fine, rigorous imprisonment for six months. (iv) under Section 404 IPC Rigorous imprisonment for one year and fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for three months. (v) under Section 201 read with Sections 302, 382, 404 and 120-B IPC Rigorous imprisonment for two years and fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for six months. 3. Smt. Parveen Sabarwal (i) under Section 120-B read with Section 302 and 382 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (ii) under Section 302 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. 3. Smt. Parveen Sabarwal (i) under Section 120-B read with Section 302 and 382 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (ii) under Section 302 IPC Life imprisonment and fine of Rs. 5,000/-. In default of payment of fine, rigorous imprisonment for two years. (iii) under Section 382 IPC Rigorous imprisonment for five years and fine of Rs. 2,000/-. In default of payment of fine, rigorous imprisonment for six months. (iv) under Section 404 IPC Rigorous imprisonment for one year and fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for three months. (v) under Section 201 read with Sections 302, 382, 404 and 120-B IPC Rigorous imprisonment for two years and fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for six months. 4. Rajesh Kumar under Section 404 IPC Imprisonment for the period for which he has already been in custody during investigation/ trial from 16.4.1997 and fine of Rs. 500/-. In default of payment of fine simple imprisonment for one month. 2. Since all these four appeals arise out of the same judgment, therefore, are being disposed of by a common judgment. 3. Brief facts of the case are as follows: 4. Ramesh Kumar (now deceased) resident of village Hat, Tehsil Theog, was owner of Car No. HP-09-1617. His brother Vasu Dev (PW 2) also owned a taxi (Maruti Van) No. HP-|9-1214. Both of them were present at Chhailaon 1.4.1997. At abouf 2 p.m., accused Uttam Kumar approached Vasu Dev to hire his taxi for going to Kalka saying that his brother had met with an accident near Surajpur and was in a serious condition. Vasu Dev, however, expressed his inability to take his taxi to Kalka because his taxi was out of order. Accused Uttam Kumar implored him that keeping in view the situation in which the accused was, some arrangement might be made for taking him to Kalka. Since Ramesh Kumar was going to Solan for the servicing of his car, therefore, Vasu Dev asked him to carry the accused up-to Kalka. Uttam Kumar informed them that he wanted to carry two more persons in the vehicle from Mori Kyar road and two more from Fagu. Since Ramesh Kumar was going to Solan for the servicing of his car, therefore, Vasu Dev asked him to carry the accused up-to Kalka. Uttam Kumar informed them that he wanted to carry two more persons in the vehicle from Mori Kyar road and two more from Fagu. Thereafter, Suresh Kumar, deceased, alongwith accused Uttam Kumar took his said car to Mori Kyar and from there, they started towards Kalka. On the way, Ramesh Kumar stopped near his house in village Hat and informed his mother that he would be back late in the night or the next morning. Ramesh Kumar, however, did not return home even on the next day. Therefore, his father deputed PW-2 Vasu Dev to search for Ramesh Kumar. PW-2 telephonically contacted his relatives at Shimla and other places to find out the whereabouts of Ramesh Kumar and also went towards Kalka in his taxi. On his way to Kalka, Vasu Dev on 5.4.1997, made enquiries at Police Station, Dharampur where he was informed that Spatu police had taken in possession a car under Section 102 Cr.P.C. as the same was found lying abandoned. Vasu Dev then went to Spatu and recognised the car owned by his brother Ramesh Kumar with the help of a sticker as its number plate was found missing. In the meanwhile, on the same day, Sita Ram (PW 1), father of Ramesh Kumar and Vasu Dev lodged a report about the missing bf Ramesh Kumar since 1.4.1997 at Police Station, Theog. In the evening on the same day, when Vasu Dev returned home, he informed his father about taking in possession of the abondoned car of Ramesh Kumar by Spatu police. This made Sita Ram apprehensive of the safety of his son Ramesh Kumar. On 6.4.1997, when a head constable had gone to the village of the deceased to make enquiries about the report lodged by his father, PW 1 Sita Ram informed him that car of the deceased has been found at Spatu. Thereupon, the said head-constable, namely Ram Singh (PW-15) recorded the statement of Sita Ram under Section 154 Cr.P.C, Ex. PB and as a consequence, FIR No. 50/1997 under Sections 364/34 IPC was registered at Police Station. Theog. For almost a week, neither the police nor the relatives of Naresh Kumar could secure any information about the whereabouts of Ramesh Kumar. Thereupon, the said head-constable, namely Ram Singh (PW-15) recorded the statement of Sita Ram under Section 154 Cr.P.C, Ex. PB and as a consequence, FIR No. 50/1997 under Sections 364/34 IPC was registered at Police Station. Theog. For almost a week, neither the police nor the relatives of Naresh Kumar could secure any information about the whereabouts of Ramesh Kumar. On 12.4.1997, PW-2 Vasu Dev went to the temple of the local Diety in village Guthan to get the blessings of the Diety in helping tracing out his brother. When he came out of the temple, a resident of village informed him that a boy and a girl had been staying in the house of Mast Ram in village Guthan for 20 to 25 days prior to 1.4.1997. Thereafter, Vasu Dev contacted Mast Ram who confirmed the information given by the villager jsls aforesaid and it was also found that son of Mast Ram- namely, accused Suresh Kumar had also left the village with the sail boy and girl on 1.4.1997 but had not returned to the village. The villagers and Mast Ram further informed Vasu Dev that the said boy and the girl had come to the village in Taxi No. HPY-1992 which remained parked outside the house of Mast Ram even after they had left, but for the last two or three days, the taxi was not there. On the request of Vasu Dev, Mast Ram agreed to send his son Mohinder Singh to Vasu Dev on the next day so that both of them could search for Ramesh Kumar and Suresh Kumar. 5. On the next day, i.e. 13.4.1997, Mohinder Singh came to Chhaila and met Vasu Dev who was at that time accompanied by Inder Singh. He informed Vasu Dev that the youngman and young girl who had been staying in his house in village Guthan had given their address to him and that they were residents of Jutogh cantonment. Thereafter Vasu Dev, Inder Singh and Mohinder Singh came to Jutogh where Mohinder Singh went to the house of which the address was available with him while Vasu Dev and Inder Singh remained at some distance. On the call of Mohinder Singh, accused Uttam Kumar came out of the house and was indentified by Vasu Dev and Inder Singh as the person who had left Chhaila on 1.4.1997, in the car of Ramesh Kumar. On the call of Mohinder Singh, accused Uttam Kumar came out of the house and was indentified by Vasu Dev and Inder Singh as the person who had left Chhaila on 1.4.1997, in the car of Ramesh Kumar. Thereafter, Mohinder Singh, Inder Singh and Vasu Dev went to Police Station, Theog and narrated the aforesaid facts to the officer incharge of the said police station. On receipt of this information, the officer-incharge, Police Station, Theog alongwith a few other police officials, Vasu Dev, Inder Singh, Mohinder Singh and a few other persons of the locality came to Jutogh where the house of accused Uttam Kumar was surrounded. At about 6 a.m., accused Uttam Kumar came out of his house and was identified by Vasu Dev and Inder Singh as the person who had accompanied the deceased in his car on 1.4.1997 from Chhaila. Thereafter, accused Uttam Kumar was taken into custody by the police and was taken to Police Station, Theog. During the course of interrogation, accused Uttam Kumar made a disclosure statement that he and accused Suresh Kumar and Parveen Sabarwal had hidden the dead body of Ramesh Kumar under a culvert near Ghana Hatti and he could get the same recovered. Pursuant to the said statement, accused Uttam Kumar got recovered a badly defaced dead body in the presence of Inder Singh and Shiv Dutt who identified the dead body so recovered to be that of deceased Ramesh Kumar. A rope was tied around its neck. The doctor who conducted the post mortem of the dead body noticed two ligature marks on the neck and opined that the cause of death of the deceased was asphyxia resulting from ante mortem strangulation by ligature. Some other external and internal injuries i.e. fractures, contusions and abrasions were also noticed on the dead body. On the evening of 14.4.1997 accused Suresh Kumar and Parveen Sabarwal were also arrested by the police. On 16.4.1997 while in police custody, accused Suresh K^mar made a disclosure statement in the presence of PWs Om PraH^sh and Sita Ram that he could point out the spots by visiting the same where he alongwith Uttam Kumar and Parveen Sabarwal and murdered the driver of Maruti Car No. HP-09-1617, removed the number plate of the car, took off the wearing apparels etc. from the body of Ramesh Kumar and where the dead body was thrown and concealed. from the body of Ramesh Kumar and where the dead body was thrown and concealed. He further disclosed that he had hidden the stone and sythe used for preparation of kiltas where with the face of the deceased was defaced by him and could get the same recovered. He further disclosed that he and accused Uttam Kumar knew the spots where the wearing apparels of the deceased, number plate of his vehicle and documents etc. had been burnt. Pursuant to this statement, a stone and a drati were recovered and taken in possession by the police at the instance of accused Suresh Kumar. Accused Suresh Kumar and Uttam Kumar also led the police party to a spot in a forest near Hira Nagar and pointed out a place where some ash, partly burnt pieces of wood and plastic articles were lying. Those were also taken in possession by the police. 6. On the same day, i.e. 16.4.1997 accused Parveen Sabarwal also made a disclosure statement stating that she had kept hidden the wrist watch of the deceased in the house of brother of her husband in Jutogh alongwith the clothes of the accused persons which they were wearing at the time of the commission of the offence and which she could get recovered. Pursuant to the said statement, accused Parveen Sabarwal got recovered the wrist watch of the deceased and also some clothes from the residential house of accused Rajesh Kumar at Jutogh cantt which were also taken in possession by the police. 7. On 18.4.1997, Rajesh Kumar aforesaid who is brother of accused Uttam Kumar was also arrested by the police alongwith his Maruti Van No. HP-02-1111. A few tools were recovered from his said van which were identified as belonging to the deceased. On the same day, accused Rajesh Kumar made a disclosure statement that he had kept hidden four rims with tyres and some tools under a culvert near village Dhanda and some parts of Maruti Car had been kept by him under a culvert near Kachi Ghati which he could get recovered. Pursuant to the said statement, accused Rajesh Kumar got four rims with tyres and some parts of Maruti Car recovered which rims and parts were identified by Vasu Dev as those of the car of his deceased brother Ramesh Kumar. Pursuant to the said statement, accused Rajesh Kumar got four rims with tyres and some parts of Maruti Car recovered which rims and parts were identified by Vasu Dev as those of the car of his deceased brother Ramesh Kumar. On 20.4.1997, accused Uttam Kumar made yet another disclosure statement to the effect that he had kept hidden the number plate of Car No. HP-09-1617 in the house of his brother Rajesh Kumar. Pursuant to such statement, he led the police party to the house of his brother Rajesh Kumar and got the number plate recovered which was taken in possession by the police. 8. On conclusion of the investigation, the officer-in-charge of the concerned police station submitted a charge sheet against the accused persons under Sections 302, 201, 21l2, 404, 414 and 120-B IPC. 9. The learned Sessions Judge framed a charge under Sections 120-B read with Sections 302 and 382 IPC, 302 IPC, 382 IPC, 404 IPC and Section 201 IPC read with Sections 302, 382, 404 and 120-B IPC against accused Uttam Kumar, Suresh Kumar and Parveen Sabarwal and a charge under Sections 120-B read with Sections 382 and 302 IPC, 404 IPC and Section 201 IPC read with Sections 302 and 382 IPC and 120-B IPC was framed against accused Rajesh Kumar. Accused pleaded not guilty to the said charges. 10. To prove the charges against the accused, prosecution examined as many as 19 witnesses. 11. Statements of the accused under Section 313 Cr.P.C. were recorded wherein accused persons denied the prosecution case. Accused Rajesh Kumar further claimed that, at the relevant time, many dead bodies were found in Ghana Hatti area and the police could not apprehend the real culprits and falsely implicated the accused persons. Accused Uttam Kumar and Parveen Sabarwal further claimed that they were pressurised/tortured to make the disclosure statements. Accused Suresh Kumar claimed that he had gone to the house of his maternal uncle in village Himri where he was informed that his brother was arrested. So he went to Police Station, Theog to find out as to why his brother was arrested and when he reached there, police arrested him. The accused, however, did not lead any defence. 12. The learned Sessions Judge found the accused guilty of the commission of the offences for which they were convicted and sentenced as aforesaid. Hence the present appeals. 13. The accused, however, did not lead any defence. 12. The learned Sessions Judge found the accused guilty of the commission of the offences for which they were convicted and sentenced as aforesaid. Hence the present appeals. 13. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the records. 14. There is no eye witness of the occurrence, therefore, to prove the charges against the accused persons, the prosecution has relied on the circumstantial evidence. The circumstances so relied upon by the prosecution are as follows : (i) Accused Uttam Kumar and Smt. Parveen Sabarwal stayed in village Ghutan at the house of Mast Ram for 20/25 days and when they left his house on 1.4.1997, they had no money with them, and borrowed Rs. 200/- from Mohinder Singh one of the sons of Mast Ram to meet their travelling expenses and thus they were in need of money. (ii) Accused Uttam Kumar and Smt. Parveen Sabarwal went to village Ghutan in taxi No. HPY-1492 belonging to accused Uttam Kumar, but leaving that taxi in the village, they started back on foot on 1.4.1997. (iii) Accused Uttam Kumar went to Chhaila and pretended to hire the taxi of Vasu Dev for going to Kalka alongwith his companions, though he did not have enough money to pay taxi charges. (iv) Accused Uttam Kumar pretended that one of his close relatives had met with an accident at Kalka and, therefore, he alongwith his companions wanted to reach that place at the earliest possible and requested Vasu Dev to make some arrangement for him upon which Vasu Dev required his brother Ramesh Kumar deceased to take him to Kalka by his Car No. HP-09-1617. (v) Accused Uttam Kumar boarded Ramesh Kumars Car at Chhaila and the Car then proceeded towards Mouri-Kiar side and from there it went towards Kalka. (vi) The same day, i.e. on 1.4.1997, deceased Ramesh Kumar met Nek Ram, PW-3, at Theog in the evening while driving his Car No. HP-09-1617, and at that time accused Uttam Kumar, Suresh Kumar and Parveen Sabarwal were in his Car and deceased Ramesli Kumar had a talk with said Nek Ram for about five-seven minutes. (vi) The same day, i.e. on 1.4.1997, deceased Ramesh Kumar met Nek Ram, PW-3, at Theog in the evening while driving his Car No. HP-09-1617, and at that time accused Uttam Kumar, Suresh Kumar and Parveen Sabarwal were in his Car and deceased Ramesli Kumar had a talk with said Nek Ram for about five-seven minutes. (vii) According to the post mortem report, Ramesh Kumar had been strangulated to death on or about 1.4.1997, or say on or about the day when he was last seen in the company of accused Uttam Kumar, Suresh Kumar and Smt. Parveen Sabarwal. (viii)Within a few days of Ramesh Kumars disappearance, i.e. on 5.4.1997, his Car was found lying abandoned, with three of its new rims replaced and stepney and several valuable articles missing, at a place called Dochi Near Spatu. (ix) Accused Uttam Kumar, while in police custody, made a disclosure statement leading to the recovery of the dead-body of Ramesh Kumar from under a culvert near Ganahati. (x) Accused Suresh Kumar made a disclosure statement pursuant to which a stone used in defacing the dead-body and a sythe used in committing the crime were recovered. (xi) Accused Uttam Kumar and Suresh Kumar led the police to a lonely place in a forest where they had burnt the clothes of the deceased, documents of his car and the number plate and ash, pieces of partly burnt wood, charcoal and pieces of partly burnt plastic etc. were recovered from that site. (xii) Accused Smt. Parveen Sabarwal made a disclosure statement which led to the recovery of the wrist watch of the deceased. (xiii)Accused Rajesh Kumar was found in possession of tools of the Car of the deceased at the time of his arrest on 16.4.1997. (xiv) Accused Uttam Kumar made another disclsoure statement pursuant to which the number plate of the (tar of the deceased was recovered from a hiding in the house of his brother Rajesh Kumar in Jutogh. (xv) Accused Rajesh Kumar, while in police custody, made a disclsoure statement leading to the recovery of four rims (including stepney) of the Car of the deceased, some valuable parts of the Car of the deceased and a pair of shoes of the deceased. 15. (xv) Accused Rajesh Kumar, while in police custody, made a disclsoure statement leading to the recovery of four rims (including stepney) of the Car of the deceased, some valuable parts of the Car of the deceased and a pair of shoes of the deceased. 15. The learned Sessions Judge found that circumstances (i) to (ix)., (xi), (xii), (xiv) and (xv) above were proved beyond any reasonable doubt and, therefore, arrived at the following conclusions: "(a) The deceased was last seen in the company of accused Uttam Kumar, Rajesh Kumar and Smt. Parveen Sabarwal. (b) Deceased was murdered and robbed of his car on or about the same date when he was last seen in the company of the above-named three accused. (c) Accused Uttam Kumar, Smt. Parveen Sabarwal and Suresh Kumar had been staying aimlessly in village Ghutan at the house of the father of accused Suresh Kumar for 23/24 days before the deceased was last seen in their company. (d) Accused Suresh Kumar became friendly with accused Uttam Kumar and Smt. Parveen Sabarwal during their stay at his fathers place and all the three left village Ghutan together on 1.4.1997. (e) Accused Uttam Kumar, Smt. Parveen Sabarwal and Suresh Kumar did not have enough money with them, but still they planned to hire a taxi and, therefore, it can legitimately be presumed that they had hatched a conspiracy to commit theft of taxi and to achieve this object futher agreed to kill the driver/owner of the taxi in case he put up resistance. (f) The dead body of the deceased was recovered from a hiding at the instance of accused Uttam Kumar and he has offered no explanation how he acquired the knowledge of the dead body being there and, therefore, the presumption is that it was dumped there by the said accused with the help of his co-accused Suresh Kumar and Smt. Parveen Sabarwal, who were with him around the date and the time when the murder of Ramesh Kumar took place. (g) Accused Uttam Kumar and Suresh Kumar had the-knowledge of the site where the clothes of the deceased and the documents of his car were burnt and, therefore, it can be presumed that they had burnt his clothes and the documents of his car at the aforesaid site. (g) Accused Uttam Kumar and Suresh Kumar had the-knowledge of the site where the clothes of the deceased and the documents of his car were burnt and, therefore, it can be presumed that they had burnt his clothes and the documents of his car at the aforesaid site. The articles recovered from the site inlcude a piece of an article of plastic, which looks like a piece of cover of some document of the vehicle, like R.C. or driving licence. 1 (h) Wrist watch Ext-P-6 of the deceased was in recent possession of accused Smt. Parveen Sabarwal which fact gives rise to the presumption that she took active part in the commission of offence of theft and murder. (i) Number plate Ext. P-42 of the car of the deceased was sought to be destroyed by accused Uttam Kumar and Suresh Kumar 1 by burning at a lonely place in a forest near Ganahati, but when it was found that the number was embossed on the plate and it was difficult to destroy it immediately, the accused concealed it between the ceiling and the roof of the house of his brother Rajesh Kumar. (j) Accused Uttam Kumar and Smt. Parveen Sabarwal had been away from their house for 23/24 days and there is no evidence that during this period they came in contact with accused Rajesh Kumar. They met accused Rajesh Kumar only after the commission of the offences of theft and murder. So it cannot be said that Rajesh Kumar accused was not a privy to the conspiracy hatched by accused Uttam Kumar, Smt. Parveen Sabarwal and Suresh Kumar." 16. It was on the basis of the above conclusions that the learned Sessions Judge has convicted and sentenced the accused persons as already stated heretofore. 17. The learned Counsel for the accused have contended that the evidence led by the presecution is self-contradictory, self-destroying and concocted and that none of the circumstances relied upon by the prosecution is proved for want of cogent, reliable and confidence inspiring evidence. The learned Counsel have pointed out the contradictions in the statements of the prosecution witnesses which we shall deal with hereafter at the appropriate place(s). It was further contended for the accused that the impugned conviction is based on "no evidence", therefore, is unsutainable. 18. The learned Counsel have pointed out the contradictions in the statements of the prosecution witnesses which we shall deal with hereafter at the appropriate place(s). It was further contended for the accused that the impugned conviction is based on "no evidence", therefore, is unsutainable. 18. On the other hand, the learned Additional Advocate General while supporting the conclusions arrived at by the learned Sessions Judge, has contended that the circumstances relied upon by the prosecution are fully and firmly established and lead to the only conclusion that the accused are guilty of the commission of the offences for which they have been convicted and sentenced by the learned trial Judge. 19. It will be worthwhile to refer hereto the law relating to the appreciation of circumstantial evidence before we proceed to examine the merits of the rival contentions. This Court while dealing with a similar situation in case Amar Singh and another v. State of H.P. (Criminal Appeal No. 94 of 1999, decided on October 28, 1999) has held as follows: "10........it is now well settled that in a case resting entirely on circumstantial evidence, the circumstances put forward must be cogently and firmly proved and must be consistent only with the hypothesis of the guilt of the accused. Further, these circumstances should be of a conclusive nature and tendency and must be such as to exclude every hypothesis except the one sought 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 must be such as to show that within all human probabilities the act must have been done by the accused." Again, in para 11 of the said judgment it was further held that: "11. Equally established in the golden rule of administration of criminal justice that suspicion howsoever strong cannot take place of proof and if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and another to his innocence, the view which is favourable to the accused must be taken. This principle has special relevance in cases wherein the charge against the accused is sought to be proved by circumstantial evidence. This principle has special relevance in cases wherein the charge against the accused is sought to be proved by circumstantial evidence. It is also an accepted legal proposition that in case the Court entertains reasonable doubt about the accused being guilty, the accused must be given the benefit of doubt. However, the rule that benefit of doubt must be given to the accused does not warrant a verdict of acquittal on the basis of surmises, conjectures and fanciful consideration." 20. The Honble Supreme Court in case Akhilesh Hajam v. State of Bihar, (1995 Supp (3) SCC 357) has ruled that from the evidence it may appear that in all probabilities the accused may be guilty 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 consideration may be, but the same cannot take the place of proof. 21. In view of the above well-settled principles we now proceed to examine each of the circumstances relied upon by the prosecution and the reasoning given by the learned Sessions Judge for accepting/ rejecting such circumstances and for convicting the accused persons. 22. Circumstances (i) and (ii) Both these circumstances are sought to be proved by the same evidence, therefore, can be conveniently discussed together. According to the prosecution, accused Uttam Kumar and Parveen Sabarwal had gone to the house of Mast Ram in village Guthan with one Roshan son of Mast Ram on the day of Shivratri of 1997. They had travelled by Taxi No. HPY 1492 belonging to accused Uttam Kumar. They stayed in the house of Mast Ram for 23/24 days and left on 1.4.1997. Since the road was blocked, therefore, while leaving the house of Mast Ram, the accused left the taxi parked in front of the house and to enable them to go to the destination, they borrowed a sum of Rs. 200/- from Mohinder Singh (PW -5) and handed over the keys of the taxi to him. Accused Suresh also accompanied them saying that he was to go to village Mohri to get his defective shoes mended. 23. 200/- from Mohinder Singh (PW -5) and handed over the keys of the taxi to him. Accused Suresh also accompanied them saying that he was to go to village Mohri to get his defective shoes mended. 23. The only witness examined by the prosecution to prove the aforesaid version is PW-5 Mohinder Singh and believing the statement of PW-5, the learned Sessions Judge held that these circumstances were proved beyond reasonable doubt. What weighed with the learned Sessions Judge to believe the statement of PW-5 is the fact that he is brother of accused Suresh Kumar, therefore, not expected to falsely make a statement which "points a needle of suspicion towards his own brother." 24. The reason given by the learned Sessions Judge to believe the statement of PW-5 though prima facie seems to be sound, yet on deeper examination, we are of the view that the statement of this witness is highly unreliable and untrustworthy. 25. It is on record that while in the witness box and under oath, PW-5 before stating anything about the case, had informed the learned trial Judge that he was under threat from both the sides. The accused had allegedly threatened him that in case he made a statement against them, they would kill him and his children and the relations of the deceased had also given him similar threats. Therefore, he requested for providing security to him before his making the statement. The learned Sessions Judge asked the learned Public Prosecutor to do the needful in case of need. It is evident in the given background that the witness wanted security to be provided to him before making the statement but as per the direction of the learned Sessions Judge, such secuirty was to be provided "through the prosecution" and that too in case of need. Apparently the directions made did not provide the security to the witness as prayed for by him. Therefore, he cannot be said to be fear-free at the time of making the statement. Two factors must be weighing in his mind viz. (i) that he was dependent on the prosecutor for his security, and (ii) the accused were in confinement whereas the relations of the deceased were free persons to execute the alleged threat and these factors are capable of making him to depose against the accused persons. 26. Two factors must be weighing in his mind viz. (i) that he was dependent on the prosecutor for his security, and (ii) the accused were in confinement whereas the relations of the deceased were free persons to execute the alleged threat and these factors are capable of making him to depose against the accused persons. 26. On the basis of the statement made by this witness it has been concluded by the learned Sessions Judge that the accused had no money to pay bus fare to reach their destination because they had borrowed a sum of Rs. 200/- from this witness. The version about the accused borrowing Rs. 200/- from this witness is merely a material improvement in the version of the witness as contained in his statement Ext. DC wherein he has not stated so. 27. It is admitted by this witness that the taxi which was left parked by the accused in front of the house of his father Mast Ram at Ghutan, was removed therefrom by some-one on 11.4.1997. He was admitedly given the key of the taxi by the accused and the taxi had been removed without payment money lent by the witness to the accused. He admittedly met accuseduttam Kumar on 13.4.1997 at Jatogh. It is not the version of the witness that he informed Uttam Kumar at that time that the taxi had been removed from the place where he had left it. He did not ask Uttam to return his money nor he returned the key of the taxi to him. It is improbable that a person who has been given the key of a parked vehicle will not disclose to the owner of the vehicle that it had been removed by some unknown person. 28. The witness has stated that he had handed over the key of the taxi entrusted to him by the accused, to the police. It is not the case of the prosecution that such key was taken in possession by the Investigating Officer nor it has been produced at the trial. 29. It is also in the statement of PWr-5 that he had lodged a report at Police Station Theog about the removal of the car (taxi parked in front of his fathers house) by some-one and such report was reduced into writing by the police on 13.4.1997. 29. It is also in the statement of PWr-5 that he had lodged a report at Police Station Theog about the removal of the car (taxi parked in front of his fathers house) by some-one and such report was reduced into writing by the police on 13.4.1997. However, such report has not been produced to lend support to his version. He has given the number of the taxi in his statement and according to him, the taxi was used by the accused to come to his fathers house. No attempt what-so-ever appears to have been made by the investigating agency to trace out the taxi or at least to find out whether any such taxi was at all taken to village Guthan and was parked there or as to who was the owner of the taxi and who removed it from the place where it was parked. 30. It is further stated by this witness that accused Uttam had given him his address, of Kasumpti and Jatog in writing and such addresses were handed over to the police by him. If there were such addresses written by accused Uttam and handed over to the witness who in turn allegedly handed over the same to the police, the same could be and should have been produced and proved by the prosecution to lend corroboration to the statement of this witness and the case of the prosecution. 31. The non-producution of the keys of the taxi, the written address of accused, report about the removal of the taxi and there being no attempt to trace out the taxi or owner thereof by the investigating agency as aforesaid, lead to the irresistible conclusion that either the witness has made a false statement or the production thereof would have gone against the prosecution. In either case it is the prosecution version which is rendered unreliable. 32. There is yet another circumstance which not only renders the version of PW-5 highly suspicious but make it manifest that the version given by this witness in all probabilities, is concocted one. According to PW-2 Vasu Dev, brother of the deceased, he had gone to village Guthan to make prayers in the temple of the local deity after 5/6 days of search for his missing brother. According to PW-2 Vasu Dev, brother of the deceased, he had gone to village Guthan to make prayers in the temple of the local deity after 5/6 days of search for his missing brother. Then he was informed by one Krishan Datt Sharma and a few other persons that a young boy and a young girl had been staying there in the house of Mast Ram for about 24/25 days and were roaming about in a Fiat Car No. HPY 1492 with accused Suresh. He then went to the house of Mast Ram and on inquiry, he was informed by Mast Ram and his wife that their son Suresh (accused) had been away from home since 1.4.1997 and had left in the company of the young girl and boy staying in their house. It is worth being noticed that they did not disclose the names of the boy and the girl though they had been staying in their house for more than three weeks and, therefore, they ought to have been aware of their names. In any case, on the request of PW-2, Mast Ram agreed to send his other son to the place of PW-2 on the next day to enable search of the deceased and accused Suresh. It is stated by PW-2 that on the next day, PW-5 Mohinder Singh came to Chhaila, informed him that the young man and the girl who stayed in Mast Rams house were residents of Jatog. Here also it is worth being noticed that according to PW-5, he had the addresses of Uttam Kumar and Parveen Sabarwal not only of Jatog but of Kasumpti also, but neither PW-5 Mohinder Singh informed PW-2 Vasu Dev about Kasumati address of the accused nor the care was taken during investigation to find out whether alleged Kasumpti address of the accused was correct or not. It is also worth-being noticed here that according to PW-7 Inder Singh, PW-2 Vasu Dev had informed him on 12.4.1997, i.e. a day before the arrival of Mohinder Singh at Chhaila, that he wanted to go towards Jatog on the next day in the company of Mohinder Singh whose brother was also missing from Guthan. It is also worth-being noticed here that according to PW-7 Inder Singh, PW-2 Vasu Dev had informed him on 12.4.1997, i.e. a day before the arrival of Mohinder Singh at Chhaila, that he wanted to go towards Jatog on the next day in the company of Mohinder Singh whose brother was also missing from Guthan. Now, there is no explanation what-so-ever as to how PW-2 Vasu Devi could visualise on 12.4.1997 that they would be going towards Jatog whereas he had neither met PW-5 Mohinder Singh before 13.4.1997 nor was informed «by anyone that accused Uttam and Parveen were residents of Jatog side about which he was admittedly informed by PW-5 Mohinder Singh on 13.4.97. 33. In view of the version of PW-2 and PW-7 as set out herein-above, it emerges that Mohinder Singh (PW-5) on 13.4.1997 came to the place of PW-2 as assured by Mast Ram, father of PW-5, with a view to assist in the search of the deceased and accused Suresh. PW-5 Mohinder Singh specifically contradicts this version. According to him (PW-5), on 13.4.1997 he was going to Narkanda from his native place. Vasu Dev (PW-2) met him at Chhaila and informed that his brother was missing and also inquired from him as to where he was going. PW-5 informed PW-2 that he was going to Narkanda and that his brother Suresh too was missing since 1.4.1997. He was then asked by PW-2 Vasu Dev to join hands to search their brothers. Thus, the version of PW-2 Vasu Dev and PW-5 Mohinder Singh about the circumstances under which they joined to search their brothers are entirely contradictory of each other. The contradictions are such that these cannot be over-looked as a result of individual perception or lapse of memory but render the version given by these witnesses improbable and cooked up. 34. Accused Uttam Kumar and Parveen Sabarwal in their statements under Section 313 of the Criminal Procedure Code have denied the prosecution version regarding their having gone to village Guthan in Fiat Car No. HPY 1492 and their having stayed there in the house of Mast Ram for 23/24 days and having left that place on foot on 1.4.1997. The other accused persons have also denied this version for want of knowledge. 35. The other accused persons have also denied this version for want of knowledge. 35. In view of the above, we have no hesitation in holding that the statement of PW-5 Mohinder Singh is utterly unreliable and untrustworthy and there being no other evidence, these circumstances cannot be held as proved and firmly established. 36. Circumstances (iii) to (vi) Since these circumstances are interlinked, therefore, are taken up for discussion together. As per the prosecution, after leaving village Guthan on 1 A. 1997, along with accused Parveen Sabarwal and Suresh. accused Uttam Kumar went to Chhaila and contacted PW-2 Vasu Dev to hire a taxi to go to Kalka along with his companions on the pretext that one of his close relatives had met with an accident at Kalka though at that time he did not have enough money to pay the taxi fare. Since the taxi owned by PW~2 was not in proper condition to undertake long journey, therefore, he required his brother Ramesh Kumar to take accused Uttam Kumar and his companions to Kalka in his Car as he was going to Solan for services of his Car. As a consequence, Uttam Kumar boarded the Car of the deceased at Chhaila and the Car then proceeded towards Mouri-Kiar side and then towards Kalka. On the way at Theog, Ramesh Kumar, deceased met Nek Ram (PW-3) and had a talk with him for about 5/7 minutes. At that time accused Uttam Kumar, Suresh Kumar and Parveen Sabarwal were also sitting in the Car HP-09-1617 being driven by the deceased. Thus, according to the prosecution, the deceased was last seen with accused Uttam Kumar, Suresh Kumar and Parveen Sabarwal. 37. To prove the above version the prosecution relied on the statements of PW-2 Vasu Dev, PW-7 Inder Singh son of Chet Ram, PW-9 Inder Singh son of Mathu Ram and PW-3 Nek Ram. 38. Be it stated that presence of accused Uttam Kumar and Parveen Sabarwal in Guthan at the relevant time has not been proved as already concluded here-in-above, therefore, the statements of these witnesses have to be read with caution, it is more so in view of the admitted fact that none of them had seen the said accused persons before they claim to have seen them and no test identification parade of the accused had been held. 39. 39. PW-2 Vasu Dev has stated that on 1.4.1997 at about 4.00 p.m. when he along with the deceased was present at Chhaila, a young man (identified by him as accused Uttam Kumar) came to him and offered to hire his taxi to go to Kalka along with four more persons two of whom were at Kiar and two at Fagu. He has further stated that the accused and his companions were to go to Kalka because his relative had met with an accident at Kalka. The witness, however, showed his inability to provide his taxi because of being defective. On the request of accused Uttam Kumar to help him in the situation, PW-2 asked the deceased who was taking his Car to Solan for service, to give lift to the accused. Thereafter accused Uttam Kumar boarded the Car of the deceased and they left towards Solan-Kalka. As per the statement of PW-2, when he was approached by accused Uttam Kumar, Inder Singh (PW-9) was sitting in his taxt. He had admittedly talked with the accused only for five minutes. He has not stated anything about any special identifying feature of accused Uttam Kumar having been noticed by him during their five minutes talk. During this period, PW-7 Inder Singh was sitting in a liquor vend from where he saw Vasu Dev and Uttam Kumar talking. However, PW-2 Vasu Dev does not state about the presence of this witness there. PW-7 has also not stated about having noticed any special identifying feature of Uttam Kumar. PW-9 Inder Singh at the relevant time was sitting inside the taxi. He has also not stated about any special identifying feature of Uttam Kumar. 40. PW-3 Nek Chand has stated that on 1.4.1997 at about 5.30 p.m. the deceased who was driving his Car wherein two men and a woman were also sitting, on seeing him stopped the Car in front of a dry clearness shop at Theog and talked with him for about five minutes and then drove his Car towards Shimla. He has identified accused Uttam Kumar, Suresh and Parveen as the persons sitting in the Car. He has also not stated about any special identifying feature of the accused having been noticed by him at the time of such talk. 41. He has identified accused Uttam Kumar, Suresh and Parveen as the persons sitting in the Car. He has also not stated about any special identifying feature of the accused having been noticed by him at the time of such talk. 41. As per the above version of the witnesses, they had seen the respective accused for a period of about five minutes. None of them had noticed any special identifying feature of the accused respectively seen by them. In case of PW-3 Nek Chand it appears improbable that while talking to the deceased for about five minutes he could have seen the accused so attentively that he could preserve their features to identify them at a belated stage thereafter. Same appears to be true in case of the other witnesses. In any case great suspicion is created about the truthfulness of this version by the initial version about the missing of the deceased as contained in the report Ext. PA and certain contradictions in the statements of the witnesses. 42. The relevant translated version as contained in report Ext. PA lodged by PW-1 Sita Ram, father of the deceased, reads as follows: "On 1.4.97 my son, namely, Shri Ramesh Chand came in the Maruti car to home from Chhaila and left for Solan by intimating at the house that he had been going to Solan and would be back home by the night. But my son Shri Ranresh has not returned home with the vehicle, whom I had waited for till today. My elder son, namely, Shri Basu Dev told that three/four persons were accompanying Shri Ramesh Chand in the car, who had told Shri Ramesh Chand that they had to go to Surajpur for some urgent work, and they be accommodated in the car upto Solan, and accordingly Shri Ramesh Chand allowed them to sit in the car and left for Solan. My son Shri Ramesh Chand has not returned home till today." 43. Thus, according to the above version, the deceased returned in the car from Chhaila to his house and after intimating that he was going to Solan and would be back by the evening, left for Solan. On the contrary, the version of PWs Vasu Dev, Inder Singh and Inder Singh now is that the deceased left towards Mori—Kiar Theog—Kalka from Chhaila. As per the above version, he was accompanied by three/four persons in the car. On the contrary, the version of PWs Vasu Dev, Inder Singh and Inder Singh now is that the deceased left towards Mori—Kiar Theog—Kalka from Chhaila. As per the above version, he was accompanied by three/four persons in the car. As per the version of PWs Vasu Dev, Inder Singh and Inder Singh only one person, namely, accused Uttam Kumar was in the car of the deceased when he left Chhaila. As per the version in Ext. PA the 3/4 other occupants of the car had told the deceased that they had to go to Surajpur for some urgent work and they be accommodated in the car upto Solan and the deceased permitted them to sit in the car and left for Solan. Contrary to it, the version of the aforesaid witnesses is that it was on the asking of PW-2 Vasu Dev that the deceased had permitted Uttam Kumar to board the car at Chhaila and as per the version of PW-2, the deceased was to take accused Uttam Kumar upto Kalka as a relation of the accused had met with an accident at Kalka. These contradictions are not minor or insignificant in nature. These are material contradictions and in fact two different versions. 44. While making statement Ext. DA to the police, PW-2 Vasu Dev had not stated about the persence of PW-9 Inder Singh in his taxi at Chhaila on 1.4.1997 when accused Uttam Kumar allegedly came to him to hire the taxi. About the presence of PW-7 Inder Singh he has not stated even in his statement in the Court rendering the presence of these witnesses highly suspicious. 45. PW-1 Sita Ram in his statement under Section 154 of the Criminal Procedure Code Ext. PB has stated that "Sh. Nek Ram an employee of Court of Sub Judge Theog had met my son Shri Ramesh at Theog" and that "one man and a woman who were the companions of that unknown person boarded the car at Kiar Road." He has further stated that ,"the unknown persons viz. two men and one woman who had been told to be present with him upto Theog had allured and abducted my son". This statement was recorded on 6.4.1997. It is not explained or stated as to how PW-1 Mast Ram came to know that a man and a woman boarded the car of the deceased at Kiar Road. two men and one woman who had been told to be present with him upto Theog had allured and abducted my son". This statement was recorded on 6.4.1997. It is not explained or stated as to how PW-1 Mast Ram came to know that a man and a woman boarded the car of the deceased at Kiar Road. There is no evidence that such persons travelled in the car of the deceased upto Theog except the statement of PW-3 Nek Chand who has stated that from 1.4.1997, the day he allegedly met the deceaseolat Theog, ftill the recording of his statement during the investigation he did not meet PW-1 Sita Ram. His statement was, admittedly, recorded during the investigation on 23.4.1997. Thus, according to PW-3, PW-1 Sita Ram had not met him during the period 1.4.1997 to 23.4.1997. On the contrary, PW-1 Sita Ram claims that on 3.4.1997 Nek Chand had met him at Theog and informed him about meeting his deceased son on 1.4.1997. The statement of PW-1 Sita Ram cannot be believed in this regard in view of what PW-3 Nek Chand had categorically and unambiguously stated. Thus, the version that the deceased was seen by Nek Chand at Theog on 1.4.1997 in the company of the accused, is not reliable and trustworthy. 46. In view of the above discussion, none of these circumstances cart be said to have been proved beyond reasonable doubts. 47. Circumstance (vii) According to the medical opinion given by PW-13 Harinder Jeet Sing Sekhon, the cause of death of deceased Ramesh was asphyxia resulting from the anitmortern strangulation by legature. The probable time between the death and post mortem was two weeks. The post mortem was, admittedly conducted on 15.4.1997 at 12,30 p.m. Therefore, as per the medical opinion Ramesh had died on 1st or 2nd of April, 1997. Thus what can be said on the basis of this opinion is that most probably he died within 24 hours of his leaving Chhaila on 1.4.1997. However, as already concluded here-in-fore, it is not established that he was last seen with accused Uttam Kumar, Suresh and Parveen as claimed by the prosecution. Thus the circumstance in itself in incapable of proving the guilt of the accused. 48. Circumstance (viii) To prove this circumstance the prosecution examined PW-16 Siri Ram, ASI, and also relied on the copy of report Rojnamcha’ Ext. Thus the circumstance in itself in incapable of proving the guilt of the accused. 48. Circumstance (viii) To prove this circumstance the prosecution examined PW-16 Siri Ram, ASI, and also relied on the copy of report Rojnamcha’ Ext. PCC about the taking into possession of a car and statement of PW-2 Vasu Dev who had identified said car as belonging to his deceased brother. This evidence has been discussed by the learned Sessions Judge vide para 33 of the impugned judgment. We need not discuss this evidence in detail. Suffice to say that this part of the version of the prosecution case is not challanged in the cross-examination of the material witnesses and in view of the evidence on record, it is proved that the car of deceased Ramesh was found abandoned at a place below 40 ft. from the valley-side road at Dochighat and its number plates, carborator, self-starter, battery coil set, air cleaner and distributor were missing and two of its tyres were punctured. We have, thus, no hesitation in holding that this circumstance is duly proved. 49. Circumstance fix) It may be pointed out at the very outset that identity of accused Uttam Kumar as one of the persons who allegedly travelled with the deceased, is not established as already held here-in-above. Therefore, at best his arrest can be attributed to the suspicion of PW 2 Vasu Dev that he was the person who allegedly travelled in the car of the deceased on 1.4.1997. The manner in which he had been arrested makes the matter more suspicious. As per the prosecution, PW-2 Vasu Dev and Inder Singh had seen the accused on 13.4.1997 at his house at the instance of PW-5 Mohinder Singh. Vasu Dev (PW-2) after identifying accused Uttam Kumar, for his own satisfaction returned to Police Station, Theog and informed the police of the direction of the accused. As per the prosecution, PW-2 Vasu Dev and Inder Singh had seen the accused on 13.4.1997 at his house at the instance of PW-5 Mohinder Singh. Vasu Dev (PW-2) after identifying accused Uttam Kumar, for his own satisfaction returned to Police Station, Theog and informed the police of the direction of the accused. A police party headed by PW-18 Mohan Singh, ASI, along with PWs Vasu Dev, Inder Singh and Shiv Datt thereafter proceeded to Jatog They reached at Jatog at 9 or 10 p.m. After deputing police officials at Jatog to ensure that accused did not escape, PW-18 Mohan Singh returned to Police Station, Boileauganj, secured police help from there and then proceeded to Jatog and thereafter house of the accused was surrounded at 1 or 2 a.m. Accused Uttam Kumar was nabbed at about 6.00 a.m. when he came out of his house and on being identified by PWs Vasu Dev and Mohinder Singh, he was arrested and taken to Police Station, Theog by PW-18 Mohan Singh after leaving the police officials of Boileauganj and Inder Singh along with some local persons, on guard at the house of Uttam Kumar because other accused persons were also "supposed” to be therein. This version of the prosecution is duly supported by PW-18 Mohan Singh. Slightly different version has been given by PW-2 Vasu Dev according to whom the police party while on way to Jatog, took for help some more police officials from Shimla and then reached at Jatog around 5.00 a.m. The divergence is, thus, about the taking of police help and the time when they reached at Jatog. According to him, PW-5 Mohinder Singh also accompanied them in addition to the PWs named by PW-18 who had though not stated about Mohinder Singh accompanying them to Jatog but had admitted his presence at Jatog at the time of apprehension of Uttam Kumar on being identified by PWs Vasu Dev and Mohinder Singh. PW-5 Mohinder Singh totally belies the statements of PWs Vasu Dev and Mohan Singh on this count. PW-5 Mohinder Singh when examined in the Court, has not been questioned for the prosecution as to whether he had accompanied the police party which went from Theog to Jatog and arrested accused Uttam Kumar. PW-5 Mohinder Singh totally belies the statements of PWs Vasu Dev and Mohan Singh on this count. PW-5 Mohinder Singh when examined in the Court, has not been questioned for the prosecution as to whether he had accompanied the police party which went from Theog to Jatog and arrested accused Uttam Kumar. Had he so gone, he would have been examined about it and non-examination simply means that he was not a witness about the arrest of Uttam Kumar. He himself has clearly and specifically stated that after his return from Jatog to Theog on 13.4.1997, he went to Narkanda on the same day, i.e. 13.4.1997. Thus, there is no question of his having accompanied the police party which arrested accused Uttam Kumar in the wee hours of 14.4.1997. Thus, PW-2 Vasu Dev has made a false statement that Mohinder Singh had accompanied them when police party went to arrest Uttam Kumar and similarly PW-18 Mohan Singh has falsely stated that Mohinder Singh was present at the time of arrest of Uttam Kumar and he was one of the two persons who identified Uttam Kumar as the person accompanying the deceased on 1.4.1997. PW-6 Shiv Datt has not stated anything about the circumstances under which accused Uttam Kumar was arrested, though he allegedly accompanied the police at that time. Now, we have two PWs named Inder Singh. PWs Vasu Dev and Mohan Singh had not given the particulars of PW Inder Singh who accompanied them to Jatog and was left behind to guard the house of the accused as aforesaid. However, a perusal of statement of PW-9 Inder Singh reveals that he is not the person who had accompanied the police party because he, admittedly, came to know about the arrest of the accused on 14.4.1997 during day time whereas accused Uttam Kumar had been arrested on the wee hours on 14.4.1997. Other Inder Singh (PW-7) has stated to have accompanied the police party which arrested accused Uttam Kumar. Thus, only PW-7 Inder Singh can be the person of this name who was left behind at Jatog with the police officials and local persons to guard the house of the accused. None of these witnesses, particularly, PW-18 Mohan Singh, Investigating Officer, had stated any reason for not arresting the other accused "supposed" to be inside the house. Thus, only PW-7 Inder Singh can be the person of this name who was left behind at Jatog with the police officials and local persons to guard the house of the accused. None of these witnesses, particularly, PW-18 Mohan Singh, Investigating Officer, had stated any reason for not arresting the other accused "supposed" to be inside the house. Such accused as per PW-18 Mohan Singh were arrested by Boileauganj Police on 14.4.1997, i.e. on the same day when Uttam Kumar was arrested. It is, however, nowhere explained as to how the Boileauganj police came to know about their identity as culprits. 50. In view of the above suspicious circumstances leading to the arrest of the accused, the evidence about their having made disclosure statements and consequential discoveries had to be scrutinised with great care. 51. Now, coming to the circumstance in hand, prosecution version in this regard may be briefly stated. After accused Uttam Kumar had been arrested and taken to Theog, on interrogation of about three hours in the presence of PWs Inder Singh and Shiv Datt, he made the disclosure statement Ext. PE to the effect that dead-body of a person had been hidden in a culvert on Shimla- Bilaspur Road passing through Pacci Bawari Forest which he could get recovered. The said statement was signed by the accused and witnesses Inder Singh son of Chet Ram (PW-7) and Shiv Datt Bhardwaj and was attested by PW-18 Mohan Singh, Investigating Officer. 52. PW-6 Shiv Datt, by and large, supports this version and according to him, the statement Ext. PE was recorded around 2-30/3 p.m. on 14.4.1997 at Police Station, Theog. Similarly, PW-7 Inder Singh, by and large, supports this version. However, according to him, the disclosure statement was made by the accused at 11 or 12 during day time. PW-18 Mohan Singh who has attested the statement, has broadly supported the version and according to him, the disclosure statement was recorded at 3.00 p.m. As already concluded above, when the police after arrest of accused Uttam Kumar left for Theog, PW-7 Inder Singh was left at Jatog along with police officials and local people to guard the house of the accused. In such a situation PW-7 could not be present at the time of interrogation and recording of the statement Ext. PE at Theog. In such a situation PW-7 could not be present at the time of interrogation and recording of the statement Ext. PE at Theog. Thus, the statement of PW 7 Inder Singh about the making of disclosure statement Ext. PE by Uttam Kumar cannot-be believed. Statement of PW-18 Mohan Singh is also unreliable. He has stated only that accused Uttam Kumar had made a disclosure statemennt. Ext. PE had not been put to him in his statement to state on oath that Ext. PE is the statement which was made by the accused, was reduced into writing and was attested by him. In his cross-examination he states that statement was made by accused Uttam Kumar in the presence of Vasu Dev, Inder Singh, Sita Ram and Mohinder Singh. If so, PW-6 Shiv Datt was not present at the time of the making of the alleged statement by accused Uttam Kumar. 53. The learned Sessions Judge had repelled the above fatal infirmities in the prosecution evidence about the alleged disclosure statement by observing that the Investigating Officer Mohan Singh appears to be a careless, inefficient and forgetful type of man, therefore, those portions of his statement which are contradictory of the statements of PWs Inder Singh and Shiv Datt have to be ignored. The learned Sessions Judge found corroboration from what is recorded in the police Zirnnies of the case to believe what PWs Shiv Datt and Inder Singh have stated and to disbelieve PW-18 Mohan Singh. 54. Section 172 of the Criminal Procedure Code provides for the maintenance and use of police Zimnies (Diary of the proceedings of investigation) and reads as follows: "172. Diary of proceedings in investigation.—(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply." 55. A bare reading of the above provisions makes it clear that the Court can use the police Zimnies only to aid it to the inquiry or trial but not as evidence in the case. To use such Zimnies to form an opinion about the credibility or truthfulness or reliability or otherwise of a witness as used by the learned Sessions Judge, will be use of the Zimnies as substantial evidence which is not permissible in law. 56. In Habeab Mohammad v. State of Hyderabad, (AIR 1954 SC 51), while dealing with similarly worded provisions contained in Section 172 of the Old Code, the Honble Supreme Court held as under: "(13) ........Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case but to aid it in such inquiry or trial. It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in these diaries. The only proper use he could make of these diaries was the one allowed by Section 172, Cr. P.C., i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused....." 57. The only proper use he could make of these diaries was the one allowed by Section 172, Cr. P.C., i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused....." 57. In case State of Bihar and another v. P.P. Sharma and another, (AIR 1991 SC 1260), the Apex Court held as follows: "41. The only duty cast on the investigation is to maintain a diary of his investigation, which is known as "Case Diary" under Section 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the court unless the case comes under Section 172 (3) of the Code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the court will help it to arrive at a proper decision in terms of Section 172 (3) of the Code...." 58. In view of the evidence and legal position as discussed above, it cannot be held that the statement Ext. PE is proved to be genuine and voluntarily made by accused Uttam Kumar and the findings of the learned Sessions Judge to the contrary are, therefore, unsustainable. 59. The prosecution case further is that pursuant to statement Ext. IE, accused Uttam Kumar got the dead body of Ramesh recovered. To prove this version the prosecution has relied on the statements of the same set of witnesses on whom it has relied to prove the statement Ext HE. 60. We have already held that making of disclosure statement Ext. PE by accused Uttam Kumar is not proved. Therefore, the alleged recovery of the dead body at the instance of accused Uttam Kumar is rendered of no use and consequence. 61. Even otherwise, a reappraisal of the material on record leads to the conclusion that there is no reliable and trustworthy evidence to prove that the dead-body was recovered at the instance of accused Uttam Kumar. Therefore, the alleged recovery of the dead body at the instance of accused Uttam Kumar is rendered of no use and consequence. 61. Even otherwise, a reappraisal of the material on record leads to the conclusion that there is no reliable and trustworthy evidence to prove that the dead-body was recovered at the instance of accused Uttam Kumar. This recovery is sought to be proved by the statements of PWs Inder Singh, Shiv Datt and Mohan Singh whose statements about the making of statement Ext. PE by accused Uttam Kumar have already been dis-believed. Further more, there are contradictions in their statements about the recovery of the dead-body as well. According to PW-18 Mohan Singh, after recording the statement Ext. PE he along with accused Uttam Kumar and the witnesses, i.e. Shiv Datt and Inder Singh, proceeded to the place of recovery of the dead-body and on the spot accused Uttam Kumar led them to a culvert where the dead-body was lying. Photographs of the dead-body which was identified by the witnesses, were also taken by the investigating officer (PW-18) and are Exts. PDD/1 to PDD/7. He has stated in his cross-examination that he along with accused, witnesses, namely, Sita Ram, Shiv Datt and Inder Singh and police officials travelled from Theog to the place-of recovery by one vehicle, i.e. Police Gypsy. PW-1 Sita Ram and PW-8 another Sita Ram have not stated that any one of them had also accompanied them to recover the dead-body nor PWs Shiv Datt and Inder Singh (PW-7) state so. According to PW-7 Inder Singh, the party which proceeded to recover the dead-body, travelled in two vehicles viz. one was the police vehicle and the other was private vehicle of Shiv Datt (PW-6), PW-7 has further stated that he travelled to the place of recovery in the vehicle of Shiv Datt along with him. According to PW-6 Shiv Datt, the party had travelled by two vehicles one belonging to the police and another to him. He has at one stage stated that PWs Vasu Dev and Inder Singh travelled with him in his vehicle and then stated that Vasu Dev did not accompany him and no other person travelled in his vehicle. According to PW-6 Shiv Datt, the party had travelled by two vehicles one belonging to the police and another to him. He has at one stage stated that PWs Vasu Dev and Inder Singh travelled with him in his vehicle and then stated that Vasu Dev did not accompany him and no other person travelled in his vehicle. Thus, there are contradictions in the statements of the witnesses about the number of the vehicles used to go to the place of recovery of the dead-body, the witnesses who went there and the manner in which they travelled. It may also be pointed out that Inder Singh, PW-7 who accompanied the police and others to the place of recovery is the same person who according to PW-18 Mohan Singh had deputed with others to guard the house of the accused. There is apparently difference in the lying position of the dead-body as given in the inquest reports Ext. PG and PG-1 and the site plan Ext. PJJ on one hand and the photographs Exts. PDD/1 to PDD/7 on the other. The learned Sessions Judge ignored these contradictions on the ground that the Investigating Officer is inefficient careless and forgetful person. However, the lapses, deficiency and contradictions can be the result of concoction and fabrication. There is nothing on the record to conclude that the lapses in the investigation and deficiency and contradictions in the evidence of the prosecution as noticed, are as a result of the so called inefficiency etc. and not because of an attempt to engineer a case. Thus, we find that the evidence led by the prosecution to prove the recovery of the dead-body at the instance of the accused is of doubtful character and, therefore, not reliable. 62. The above discussion leads us to the conclusion that this circumstance is also not proved. 63. Circumstances (x) & (xi) : Since both these circumstances are sought to be proved by the same set of evidence, therefore, are taken up together. 64. As per the prosecution, accused Suresh Kumar made disclosure statement Ext. PJ on interrogation by PW-18 Mohan Singh in the presence of PW-8 Sita Ram and one Om Prakash. Contents of statement Ext. 63. Circumstances (x) & (xi) : Since both these circumstances are sought to be proved by the same set of evidence, therefore, are taken up together. 64. As per the prosecution, accused Suresh Kumar made disclosure statement Ext. PJ on interrogation by PW-18 Mohan Singh in the presence of PW-8 Sita Ram and one Om Prakash. Contents of statement Ext. PJ, briefly stated, are that accused Suresh Kumar disclosed that (i) he could point out the spots where the deceased was murdered, number plate of his car and his wearing apparels removed and thrown and dead body was concealed which places apart from him are known to accused Uttam Kumar and Parveen; (ii) he could get recovered a Darati and a stone from the places where he had kept them concealed and which places are not known to anyone else; (iii) he could point out the places where the number plate of the car, wearing apparels of the deceased and documents of the car were burnt. 65. The case of the prosecution further is that pursuant to the statement Ext. PJ, accused Suresh Kumar got recovered stone Ext. P-4 from a place outside a culvert which was taken into possession vide memo. Ext. PL. Suresh Kumar accused then led the recovery-party to a place below Hathani Ki Dhar precipice and pointed out a place amongst the bushes from where ash, earth, pieces of charcoal, burnt wood and plastic were taken in possession vide memo. Ext. PH. Suresh Kumar, accused then led the recovery witnesses to a sewage gutter located below the Police Post Jatog and got recovered sythe Ext. P-7 from there which was taken in possession vide memo. Ext. PO. 66. So far as portion (i) supra of the alleged disclosure statement is concerned, it did not lead to the discovery of any fact, hence is not admissible in evidence in view of provisions of Section 25 of the Evidence Act. 67. PW-8 Sita Ram in his statement has specifically stated that accused Suresh Kumar had stated that stone and Darati were kept hidden at a place and only he had the knowledge of that place. Thus, according to him, the stone and Darati were hidden at the same place. 67. PW-8 Sita Ram in his statement has specifically stated that accused Suresh Kumar had stated that stone and Darati were kept hidden at a place and only he had the knowledge of that place. Thus, according to him, the stone and Darati were hidden at the same place. However, in his cross-examination in the context of interrogation of accused Suresh, he has stated that the accused had named Shimla - Mandi Road and Kachighati Road as the places where these articles were kept hidden. PW-16 Mohan Singh has stated that accused Suresh had named the places where the stone and Darati were kept hidden and such places were recorded in the statement. A perusal of statement Ext. PJ reveals that (i) it does not disclose whether stone and Darati were kept at the same place or at different places, (ii) contrary to what PW-8 and PW-18 have stated, the place or places where the stone and Darati were allegedly concealed, have not been mentioned in this statement, and (iii) the alleged recoveries of stone and Darati had been made from places other than those mentioned by PW-8 Sita Ram as having been stated by the accused as places of concealment. 68. Similarly Ext. PJ does not mention the name of the place where the clothes etc. were burnt. Whatever has been recovered vide memo. Ext. PM from the place to which the accused took the Investigating Officer and the witnesses is ash, earth and pieces of charcoal and plastic. As per statement Ext. PJ, nothing made of plastic was burnt at the place of the alleged recovery. The number plate allegedly burnt there was incapable of being reduced to ashes as the number plates of car are not made of the substance which could be burnt to ashes and no part thereof was recovered. The recovered stuff thus is proved to be not connected with anything belonging to the deceased. 69. There are yet other circumstances which when read with the above, render these circumstances merely a farce. Accused Suresh was arrested by Boileauganj police. There is no explanation as to how the arresting police officials came to know about his complicity in the commission of the offences and who had identified him as the suspect/offender before the police. Even the police official who arrested him, has not been examined to clarify the situation. 70. Accused Suresh was arrested by Boileauganj police. There is no explanation as to how the arresting police officials came to know about his complicity in the commission of the offences and who had identified him as the suspect/offender before the police. Even the police official who arrested him, has not been examined to clarify the situation. 70. There are contradictions in the statements of PW-8 and PW-18 about the circumstances under which PW-8 came to be associated in the investigation of the case and the manner in which the police officials, accused and the witnesses travelled to visit the places of alleged recovery creating grave suspicion about the veracity of the witnesses. 71. In view of the above, these circumstances are a force rather than fully and firmly established circumstances. 78. Circumstance (xii): According to the prosecution, accused Parveen while in police custody on 16.4.1997 made a disclosure statement Ext. PK to PW-18 Mohan Singh in the presence of PW-8 Sita Ram and one Om Prakash that she could get a wrist watch recovered which had been kept concealed in the house of accused Rajesh Kumar and got the watch Ext. P-6 recovered. To prove this circumstance, the prosecution relies on the statements of PW-6 and PW-18 and about their being truthful witnesses, a serious doubt is created by what we have already disussed here-to-fore. 79. As per the statement Ext. PK, accused Parveen had kept the watch concealed in the house of accused Rajesh Kumar (admittedly, brother of her husband accused Uttam Kumar, and as per the contents of recovery memo Ext. PN, she led the Investigating Officer and the witnesses to the house of Rajesh Kumar and produced the watch Ext. P-6 after taking it out from a bag lying under a cot. 80. A bare look on Exts. PK and PN make it evident that the dates given therein by PW-8 Sita Ram under his signatures contain over-writing so far as the figure 6 of the day 16 is concerned. Apparently, the date earlier given is "17.4.97" in both these documents. However, by over-writing, the figure "6" the dates have been changed to read as "16.4.97". There is no explanation as to why these dates have been changed and in the absence of such explanation, the inference can be drawn that these documents viz. Exts. Apparently, the date earlier given is "17.4.97" in both these documents. However, by over-writing, the figure "6" the dates have been changed to read as "16.4.97". There is no explanation as to why these dates have been changed and in the absence of such explanation, the inference can be drawn that these documents viz. Exts. PK and PN were prepared on a day other than the day they are stated to have been prepared. 71. Be it stated that when there is a suspicious circumstance apparent on the face of the document, it is for the party claiming that such document is genuine, to explain such circumstance failing which the benefit must be given to the opposite party. In this case lapse on the part of the prosecution to explain the over-writing thus renders these two documents suspicious, benefit whereof must be given to the accused. 72. As per version of PW-8, it was accused Rajesh Kumar who led them to the house from where the watch was allegedly recovered. PW-18 does not disclose who led them there but states that they went to the house of Rajesh Kumar at Jatog which was locked and the lock was opened by the wife of accused Rajesh Kumar. Thus, the place of recovery was not in exclusive possession of accused Parveen but under the effective control of the wife of Rajesh Kumar. 73. PW-18, admittedly, took photographs about recovery of the watch Ext. P-6. Exts. PFF/1 and PFF/2 are such photographs. When cross-examined about this recoveiy, he has clearly stated that accused Rajesh Kumar was not present at the time of recovery of the watch. When confronted with the photographs, he has stated that accused Rajesh Kumar was visible therein. It further confirms that the recoveries made in this case are farce and also leads to the conclusion that the investigation in the case was not fair. Thus, the recovery of watch Ext. P-6 is not proved to be at the instance of the accused. 74. As a result, we have no doubt what-so-ever in holding that the prosecution has failed to prove this circumstance, 75. Circumstance (xiii): There is no reason to differ with the conclusion of the learned Sessions Judge that this circumstance is not proved. 76. Circumstance (xiv): According to the prosecution, accused Uttam Kumar on 20.4.1997 made statement Ext. 74. As a result, we have no doubt what-so-ever in holding that the prosecution has failed to prove this circumstance, 75. Circumstance (xiii): There is no reason to differ with the conclusion of the learned Sessions Judge that this circumstance is not proved. 76. Circumstance (xiv): According to the prosecution, accused Uttam Kumar on 20.4.1997 made statement Ext. PV on interrogation by PW-18 Mohan Singh in the presence of PW-9 Inder Singh and one Deep Ram. As per the contents of this statement, the accused has stated that he had kept concealed number plate of vehicle HP 09-1617 in the house of Rajesh Kumar which he could get recovered and as a consequence, partially burnt number plate Ext. P-42 was got recovered by him and was taken in possession by the police vide memo. Ext.PW in the presence of PW-9 Inder Singh and PW-10 Dharminder Singh, a person of the locality. 77. This version is also unreliable for more than one reason. There is no evidence that accused Uttam Kumar and Rajesh Kumar reside in the same house belonging to them. Further, there is no evidence that house of Uttam Kumar, house of Rajesh Kumar and official quarter allotted to their mother at Jatog which have been repeatedly referred to in the statements of the witnesses, are different houses or is one and the same house. What can be said on the basis of site plan Ext. PMM is that one room each of the allotted quarter is occupied by Asha Kumari and the other room thereof by accused Rajesh Kumar but none by Uttam Kumar. Prosecution evidence on this count, therefore, is discrepant leading to creating confusion than clarity. According to Ext.PV, the number plate was concealed in the house of Rajesh Kumar but according to PW-9, it was kept in the house of accused Uttam Kumar. As per the contents of memo. Ext. PW, the recovery has allegedly been made from the residential house of accused Uttam Kumar after breaking open a plank of the roof of such house. PW-18 has stated that this recovery was made after pulling a plank of the house of Rajesh Kumar. According to PW-9 Inder Singh, it was recovered from the house of Uttam Kumar after removal of a plank of the roof. PW-10 Dharmender Pal has a different story to tell. PW-18 has stated that this recovery was made after pulling a plank of the house of Rajesh Kumar. According to PW-9 Inder Singh, it was recovered from the house of Uttam Kumar after removal of a plank of the roof. PW-10 Dharmender Pal has a different story to tell. As per him, he was taken by the police to the Government quarter allotted to the mother of accused Uttam Kumar where there was a heap of junk covered with dust. Police started making search for a number plate whereby the dust started rising and settling on the clothes of those present there.Therefore, this witness came out of the house and stood outside the house. After some time, the police and accused Uttam Kumar holding the plate Ext. P-42 came out of the house. The witness is not aware as to from whom the number plate had been recovered. Thus, there is nothing in the statement of this witness that the accused led the recovery-party to the place of recovery or the number plate was taken out from the place where it is alleged to be, by accused Uttam Kumar. On the contrary, it appears from the statement of this witness that the police party was searching for the plate in a heap of junk. Had there been a genuine statement of accused Uttam Kumar and had he recovered the name plate, there was no need to carry out search of the heap of junk by the police. The alleged disclosure and discovery are alleged to have been made on the 7th day of arrest of the accused which factor also adversely affects its value. 78. In view of the above discussions, we hold that this circumstance is also not firmly and conclusively established. 78. Circumstance (xv): The version of the prosecution about this circumstance is that on 18.4.1997 while in police custody accused Rajesh Kumar made a disclosure statement Ext. PS on interrogation by PW-18 Mohan Singh in the presence of Inder Singh (PW-9) and one Deep Ram and pursuant to the said statement, got recovered a cover of cassette player-cum-Tape recorder Ext. P-22, stered Ext. P-23, distributor Ext. P-24, two speakers Ext. P-25 and Ext. P-26, self Ext. P-27, an electric coil Ext. P-28, a carburator Ext. P-29, a horn Ext. P-30, air cleaner cap Ext. P-31, a pair of shoes Ext. P-32 and a woolen foot mat Ext. P-22, stered Ext. P-23, distributor Ext. P-24, two speakers Ext. P-25 and Ext. P-26, self Ext. P-27, an electric coil Ext. P-28, a carburator Ext. P-29, a horn Ext. P-30, air cleaner cap Ext. P-31, a pair of shoes Ext. P-32 and a woolen foot mat Ext. P-33 vide recovery memo. Ext. PT from underneath a culvert an Shimla - Solan Road at Kachi Ghati and four tyres with rims Ext. P-8 to Ext. P-11 from underneath a culvert at Danda on Shimla - Mandi Road. PW-9 Inder Singh and one Deep Ram are the witnesses of recovery vide memo. Ext. PT and PW-8 Sita Ram and one Om Prakash are the witnesses of recovery vide memo. Ext. PQ. 79. To prove the making of the disclosure statement Ext. PS and recovery vide Exts. PT and PC, the prosecution examined PW-18 Mohan Singh, Investigating Officer, PW-9 Inder Singh and PW-8 Sita Ram. It may be pointed out here that in the memos of recoveries Exts. PT and PQ there is no mention nor it is case of the prosecution that the recovered articles were identified by any one as belonging to and as parts of the car of the deceased. 80. The learned Sessions Judge has also relied on these recoveries only to the extent of recovery of pair of shoes Ext. P-32 and the tyres with rims Exts. P-8 to P-11 and about the recovery of other articles, i.e. parts of the car, he has held and rightly so, that the other parts of vehicle recovered vide Ext. PT and PQ were not proved to be the parts of the car of the deceased for want of cogent and reliable evidence. Therefore, we need to examine the reliability of recovery of tyres with rims Exts. P-8 to P-11 vide Ext. PT and the recovery of shoes Ext. P-32 only. 81. The learned Sessions Judge relied on the recovery of tyres with rims on the ground that the numbers engraved on the recovered rims tallied with the number of one of the four rims which were fitted in the car of the deceased as recovered by Sobathu Police under Section 102 of the Criminal Procedure Code. We have compared the numbers of the rims in question and find that their number do not fully tally as wrongly held by the learned Sessions Judge. We have compared the numbers of the rims in question and find that their number do not fully tally as wrongly held by the learned Sessions Judge. There is an observation of the learned Sessions Judge, made during the course of examination of PW-8 Sita Ram that the gunny bag containing these tyres with rims which was allegedly sealed at the time of recovery, when produced in the Court, did not contain the seal impressions. Therefore, possibility of the case property having been tampered with cannot be ruled out in the absence of any explanation as to how the seal impressions affixed to the gunny bag had disappeared. In view of these circumstances and there being no other cogent and reliable evidence to connect the recovered rims with the car of the deceased, the recovery of four tyres with rims vide memo. Ext. PT does not connect the accused with the commission of the offence alleged to have been committed by them. 82. The recovery of the shoes, in our considered view, is not only unreliable but also inadmissible. PW-9 Inder Singh and PW-19 Anju Sharma have identified the shoes Ext. P-32 as these of the deceased. However, both of them have identified them as such only at the trial and none had identified these shoes as belonging to the deceased at the time of recovery. It is in the statement of PW-9 Inder Singh, who is a marginal witness of recovery of Ext. P-32 vide memo. Ext. PT, that the recovered shoes belonged to the deceased who was wearing them on 1.4.1997. In case Inder Singh (PW-9) could identify the shoes of the deceased, he could have identified them at the time of recovery and this fact could be and ought to have been mentioned in the recovery memo. Ext.PT. Having failed to do so, the statement of PW-9 on this count is nothing but an after thought and thus not reliable. 83. In the statement Ext. PS there is a specific reference to one "Mohinder Singh" as the person apart from accused Rajesh Kumar who knew about the tyres with rims and other parts of the car having been kept concealed at the places of recovery. The prosecution has not explained as to who is Mohinder Singh and what roll he has to play in the matter. 84. Lastly, as per the prosecution, statement, Ext. The prosecution has not explained as to who is Mohinder Singh and what roll he has to play in the matter. 84. Lastly, as per the prosecution, statement, Ext. PS was made by the accused to PW-18 Mohan Singh who has supported the prosecution on this count and apparently the statement Ext. PS is attested by him. However, PW-9 Inder Singh who has stated in the examination-in-chief that accused was interrogated by police and his statement was recorded, has not stated therein as to who interrogated the accused and recorded the statement Ext. PS. However, in his cross-examination he has stated specifically that the statement was recorded by ASI Basti Ram. Said ASI Basti Ram has not been produced to state about the roll played by him in this regard. 85. A perusal of statement Ext. PS shows that there is no mention of the shoes having been kept concealed, by the maker of the statement. Thus, recovery of shoes Ext. P-32 cannot be said to be in consequence of the statement Ext. PS. 86. To properly appreciate the legal position in this regard, a reference may be made to Section 27 of the Indian Evidence Act which provides as follows: "27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, relates distinctly to the fact thereby discovered, may be proved." 87. On a bare reading of the above provisions, it is clear that the words "as much of such information.........as relates distinctly to the fact thereby discovered" are of the essence and contain the whole force of the Section, therefore, the extent of the information to be admissible is dependent on the fact discovered as a consequence thereof. Therefore, only so much of the information as relates distinctly to the fact thereby discovered will be admissible in evidence. In other words, the discovery at the instance of the accused which is not based on the informative statement earlier made will not be admissible under the provisions of Section 27 supra. 88. In view of the above position in law, the recovery of shoes Ext. P-32 is not admissible under Section 27 supra. 89. In other words, the discovery at the instance of the accused which is not based on the informative statement earlier made will not be admissible under the provisions of Section 27 supra. 88. In view of the above position in law, the recovery of shoes Ext. P-32 is not admissible under Section 27 supra. 89. A recovery of incriminating article by the accused without prior informative statement, however, may amount to conduct of the accused within the scope of Section 8 of the Evidence Act and, thus, may be admissible. However, even in view of this position, the version regarding recovery of shoes Ext. P-32 is not proved to be "at the instance of the accused" for the reasons that Inder Singh (PW-9) who was present at the time of alleged recovery and claims to be in a position to identify the shoes, had not identified them at the time of recovery as belonging to the deceased. 90. In view of the above, even this circumstance cannot be held as proved, 91. As concluded here-in-above, none of the circumstances relied upon by the prosecution to prove the charges against the accused is proved except the inconsequential circumstance No. (viii), therefore, the findings of the learned Sessions Judge to the contrary and the conclusions (a) to (j) arrived at by him vide para 62 of the impugned judgment and as set out in para 15 ante of this judgment, are unsustainable. 92. As a result, the appeals are accepted. The convictions and sentences awarded to the accused persons are set aside and they are acquitted of the respective charges against them. 93. The accused persons Uttam Kumar, Parveen Sabarwal and Suresh Kumar who are presently in custody, be set at liberty forthwith unless required to be detained in custody in connection with any other case. Accused Rajesh Kumar is on bail pursuant to the order of this Court. His bail bonds shall stand cancelled and discharged. 94. The fine, if already recovered, be refunded to the accused concerned. Appeal allowed.