JUDGMENT Kuldip Chand Sood, J.—Appellants Sat Pal, Gurdas, Amar Chand, Mohinder Singh and Ramesh, hereinafter referred to as the accused, have been convicted by the learned Sessions Judge, Solan for offences punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code in Sessions Trial No. 6-NL/7 of 1997 vide judgment dated June 24, 1998 and each has been sentenced to: (i) rigorous imprisonment for one year and fine of rupees 500 each for offence punishable under Section 147 of the Indian Penal Code; (ii) rigorous imprisonment for two years and fine of rupees 500 each for offence punishable under Section 148 of the Indian Penal Code; and (iii) life imprisonment and fine of rupees 500 each for offence punishable under Section 302 read with Section 149 of the Indian Penal Code. In case of default in the payment of fine, all the accused are to suffer further imprisonment for six months each. In case of the realization of the fine, rupees 5,000 has been directed to be paid as compensation to the widow of the deceased. 2. Dis-satisfied with the conviction, accused have preferred the present appeal. Prosecution case. 3. Jagat Ram deceased was resident of village Sunna. Having retired from the Army, he was working as JBT Teacher. On the morning of October 22, 1996, he left his house to attend a panchayat hearing at Dolli. Devinder Kumar (PW 6) was a Member of Gram Panchayat Dolli at the relevant time. He met Jagat Ram at about 10.30 a.m. on his way to Dolli, It was decided between two of them that they will return back together in the evening. Jagat Ram visited Dolli Panchayat at about 3.30 p.m. He was drunk. He snatched file from the table of Pradhan of Gram Panchayat. His case was adjourned. Jagat Ram came out of the Panchayat. Devinder Kumar met deceased Jagat Ram outside the shop of one Ram Dittu. Jagat Ram asked Ram Dittu to buy for him a bottle of liquor, When all three of them reached Bhatiyat. Ram Dittu and Jagat Ram went into the floor mill of one Balak Ram. After some time, three of them then again started on their way to Sunna. At Gajre Ki Bouri, Jagat Ram and Dittu consumed liquor. Ram Dittu returned from that place and thereafter, Jagat Ram and Devinder started walking towards Sunna. Ram Dittu and Jagat Ram went into the floor mill of one Balak Ram. After some time, three of them then again started on their way to Sunna. At Gajre Ki Bouri, Jagat Ram and Dittu consumed liquor. Ram Dittu returned from that place and thereafter, Jagat Ram and Devinder started walking towards Sunna. On their way, at Chilano Moar, they met Sat Pal (PW 1) and Mahantu (PW 7). Sat Pal asked deceased as to why he (Jagat Ram) had given him beatings on an earlier occasion. Sat Pal was armed with danda. In the meanwhile, other accused persons also appeared. Each of them were having a danda in their hand. Arguments between deceased and Sat Pal (PW 1) ensued. Mahantu (PW 7) advised them not to quarrel. Mahantu was asked not to meddle. All of them started walking towards Ulna. When they reached Gabli Ghasni, (about 30 mtrs. from Chilanoo MoarL Sat Pal (PW 1) called Devinder (PW 6) a dalla (pimp) of Jagat Ram. Sat Pal slapped and pushed Devinder (PW 6). Jagat Ram was beaten by the accused with "dandas. Devinder was asked to take Jagat Ram to his house. However, after walking some distance, accused again pushed Devinder, kicked him from behind and warned him that he should not give evidence in favour of Jagat Ram. Devinder Kumar (PW 6) finding opportunity escaped. He shouted for Mahantu (PW 7), apprised him of the occurrence and then both of them came to the house of Mahantu. Devinder slept in the house of Mahantu that night. In the morning of October 23, 1996, Parveen (PW 3) son of deceased Jagat Ram spotted the dead body of his father lying near bouri in village Lower Sunna, who, in turn, intimated his mother Smt. Savitri wife of deceased (PW 2) and Jai Lai (PW 4) brother of the deceased. The matter was immediately reported to the Police. Police team headed by Govind Ram Station House Officer (PW 16) came to the spot, recorded the FIR on the statement of Jai Lai (PW 4), brother of deceased Jagat Ram. The Investigating Officer prepared the inquest report, took into possession the blood stained earth stones etc., from the place where dead body was lying. After completing the formalities, sent the dead body for post mortem. Accused were arrested. On the disclosure statement made by all the accused, five dandas Exts. The Investigating Officer prepared the inquest report, took into possession the blood stained earth stones etc., from the place where dead body was lying. After completing the formalities, sent the dead body for post mortem. Accused were arrested. On the disclosure statement made by all the accused, five dandas Exts. P 16 to P 20 were recovered. Dr. A.K. Tewari (PW 5) conducted the post mortem on the body of Jagat Ram on October 24, 1996 and found the following injuries on the person of the deceased: "A lacerated wound on right eye brow size 1" obliqly into a skin depth with clot and fresh blood coming from the same, A compound fracture of shaft radius and ulna. A small size lacerated wound 1/2 cm. on dorsal aspect of right elbow. Two lacerated cut wounds on right leg anteriorly size 1 cm. each. A lacerated wound on left leg anteriorly size lcm. x 1 cm. depth with multiple bruises and abrasions. All were ante mortem in nature." 4. According to Dr. Tewari, the death occurred due to haemorrhage and shock. All the injuries were found to be ante mortem. In the opinion of Dr. Tewari, injuries found on the dead body of deceased Jagat Ram could be caused with Dandas Ext. P 16 to P 20 recovered at the instance of the accused. 5. All the accused after commitment were charged for offences noticed above. All of them plead innocence and claim that they have falsely been implicated by Jai Lai (PW 4), Devinder (PW 6). Mahantu (PW 7), Jagar Nath and Gita Ram. 6. We have heard Mr. T.R. Chandel, learned Counsel for the accused Nos. 1 to 4, Mr. M.S. Chandel, learned Counsel for the accused No. 5 and Mr. B.P. Sharma, learned Additional Advocate General for the State and gone through the record. We have also reappraised the entire evidence with the help of the learned Counsel. 7. Babu Ram (PW 1), Smt. Savitri (PW 2), Jai Lai (PW 4) and Chet Ram (PW 8) are the persons who saw the dead body of Jagat Ram lying near bouri’ after having been informed by Parveen (PW 3). The main stay of the prosecution case is the occular evidence of Devinder Kumar (PW 6) and Mahantu (PW 7). Babu Ram (PW 1) is also witness to the lifting of the blood stained stones, earth etc. The main stay of the prosecution case is the occular evidence of Devinder Kumar (PW 6) and Mahantu (PW 7). Babu Ram (PW 1) is also witness to the lifting of the blood stained stones, earth etc. He is also witness to the statements made by the accused leading to the discovery of Dandas Exts. P 16 to P 20. Man Singh (PW 9) took photographs of the dead body. Shri Sham Lai (PW 12) is Surveyor in the Department of Public Works who prepared the site plan. Joginder (PW 16) saw deceased going alone towards village Sunna at about 9.00 p.m. The other witnesses are police officials who took part in the investigation of the case. 8. The prosecution case in fact rests entirely on the ocular evidence of Davinder Kumar (PW 6) and Mahantu (PW 7). 9. According to Smt. Savitri (PW 2), widow of deceased Jagat Ram, her husband left his house for Panchayat at Dolli on October 22, 1996 in connection with his case. He was to return back on the same evening but he did not return though she kept on waiting for him till 7.00 p.m. On that day, she was living in her second house located in Upper Sunna. It is her evidence that on the next morning, her son Parveen went to bouri to fetch water. He returned back and informed that Jagat Ram was lying near the bouri and she should go and see him. She went to bouri and saw the dead body of her husband. According to her, forehead of her husband was bleeding, right arm was broken and both the legs had injuries. She sent for Jai Lai (PW 4), brother of the deceased who, in turn, reported the matter to the police. She denies the suggestion that her relation with her husband were strained and that even few days prior to the death of her husband, he had tried to throttle their son Parveen after taking liquor. She also denies the suggestion that her husband was facing prosecution for several offences including rape. Parveen (PW 3) corroborates the evidence of her mother. 10. Now it is the evidence of Devinder Kumar (PW 6) that on October 22, 1996, he was going to Gram Panchayat, Dolli to attend panchayat session and met Jagat Ram at about 10.00 or 10.30 a.m. on roadside near Sunna. Parveen (PW 3) corroborates the evidence of her mother. 10. Now it is the evidence of Devinder Kumar (PW 6) that on October 22, 1996, he was going to Gram Panchayat, Dolli to attend panchayat session and met Jagat Ram at about 10.00 or 10.30 a.m. on roadside near Sunna. Jagat Ram informed him about his hearing in the Panchayat and both of them agreed to return back together in the evening. It is his evidence that at about 3.30 p.m. Jagat Ram came to the Panchayat. He was smelling of alcohol He snatched file from the table of the Pradhan of the Panchayat and told the Pradhan that he would see the file for himself. Jagat Ram, according to this witness, was drunk at that time. Therefore, the hearing of his case was adjourned. The witness remained busy in the meeting of the panchayat. After the meeting was over, he did not find Jagat Ram and then started walking towards Sunna all alone. However, at some distance near the shop of Ram Dittu, he noticed Jagat Ram. It is the evidence of this witness that Jagat Ram gave rupees 40/ to Ram Dittu to purchase a bottle of liquor and then all three of them i.e., Jagat Ram, Devinder Kumar and Ram Dittu started walking towards village Sunna. When they reached place known as Bhatiyat, Jagat Ram and Ram Dittu went to the floor mill of one Shri Balak Ram. Devinder did not accompany them. They returned back after some time and all three of them resumed their journey to Sunna. When they reached Gajre Ki Bouri, Jagat Ram and Ram Dittu consumed liquor. It was about 7.00 p.m. Ram Dittu returned bkck from that place. Devinder and Jagat Ram then started walking to Sunna. When they reached Chilanoo Moor, at about 8.00 or 8.30 p.m. Sat Pal and Manatee met them. Sat Pal questioned Jagat Ram for beating him on an earlier occasion. Both of them started arguing with each other. In the meanwhile, Gurdass, Amar Chand, Mohinder and Romesh came there. All of them were carrying dandas. They also started quarrelling with Jagat Ram. Manatee tried to pacify them and told them not to quarrel. Some of the accused, according to this witness, asked Mahantu not to meddle on this Mahantu left the place. In the meanwhile, Gurdass, Amar Chand, Mohinder and Romesh came there. All of them were carrying dandas. They also started quarrelling with Jagat Ram. Manatee tried to pacify them and told them not to quarrel. Some of the accused, according to this witness, asked Mahantu not to meddle on this Mahantu left the place. All of them, including Jagat Ram deceased, and PW Devinder Kumar started walking towards Sunna. When they reached Gabli ki ghasni, Sat Pal (PW 1) asked him 0 to since when he has become Maila" of Jagat Ram. Devinder told Sat Pa! that there is no question of he being "dalla’ and that he and Jagat Ram are returning back after Panchayat Meeting. On this, PW 1 Sat Pal slapped Devinder (PW 6) and pushed him down on the road. He fell down. Then, all the accused started beating deceased Jagat Ram. After beating Jagat Ram, they (accused) told him (Devinder Kumar) to take Jagat Ram to his house. In the meanwhile, shoe of Jagat Ram had also fallen, so he (Devinder Kumar) helped him in wearing the shoe. All of them again threatened Devinder Kumar, and told him that he would also be beaten if he gives evidence in favour of Jagat Ram. Devinder Kumar again fell down. He promised that he would not give evidence in favour of Jagat Ram, Finding an opportunity, Devinder escaped and ran towards! Dolli. It is the evidence of this witness that liquor bottle which Jagat Ram was carrying was broken while Sat Pal had pushed Jagat Ram. When Devinder reached Chilanoo Moar, he shouted for Mahantu and narrated to him the entire occurrence. Mahantu asked him to accompany him to his house. Therefore, Devinder Kumar went with Mahantu to his house and spent night at his place. According to Devinder Kumar, he expressed fear that accused may liquidate Jagat Ram. Next morning, he left the house of Mahantu and reached Sunna and thereafter came to know that Jagat Ram has died. 11. Mr. M.S. Chandel and Mr. Therefore, Devinder Kumar went with Mahantu to his house and spent night at his place. According to Devinder Kumar, he expressed fear that accused may liquidate Jagat Ram. Next morning, he left the house of Mahantu and reached Sunna and thereafter came to know that Jagat Ram has died. 11. Mr. M.S. Chandel and Mr. T.R. Chandel, learned Counsel for the accused, strenuously urges that this witness cannot be relied upon, Evidence of the witnesses is assailed on the grounds: (a) that this witness is named in the FIR as suspect; (b) the witness did not disclose about the incident to the police or any person after reaching Sunna even after knowing about the death of Jagat Ram and despite the fact that he himself was beaten by the accused; (c) the statement of this witness was got recorded by the police under Section 164 of the Code of Criminal Procedure during the investigation and therefore, his evidence become suspect. 12. It is admitted position that Jagan Nath, Devinder Kumar and Gita Ram were named as suspects in the FIR lodged by the brother of the deceased Jai Lai (PW 4). FIR was recorded on the basis of the statement of Jai Lai (PW 4), brother of the deceased under Section 154 of the Cr.P.C. (Ext PW 4/D); According to this report, deceased Jagat Ram, who was working as teacher in the Primary School Badhal, used to live alongwith his family at lower Sunna. On October 18, 1996, he had come from Badhal to Sunna and on previous day, he had gone to Gram Panchayat Dolli. His dead body was found lying on the back near village Dolli by his son Parveen. He also went to the spot. There were injuries on the dead body and that blood has been spotted from village ghasni to Sunna at various places from which it appears that Jagat Ram was coming from his panchayat hearing, he was brutally beaten and because of this, he died. The FIR reads : "Gita Ram, Devinder Resident of Village Bakhoa, and Jagan Nath Resident of Sunna appears to be involved in his death because Gita Ram used to threaten openly that he would definitely kill Jagat Ram in the month of Bhadon." 13. Govind Ram (PW 15) admits that involvement of Jagan Nath, Gita Ram and Devinder was suspected in the murder of the deceased Jagat Ram. Govind Ram (PW 15) admits that involvement of Jagan Nath, Gita Ram and Devinder was suspected in the murder of the deceased Jagat Ram. The fact that this witness was a suspect in the FIR would require the Court to scrutinise the evidence of this witness carefully and with caution. The court would also look for corroboration : (b) The witness did not disclose about the incident to the police or any person after reaching Sunna even after knowing about the death of Jagat Ram and despite the fact that he himself was beaten by the accused. 14. According to this witness, decease was drunk even when he visited the Panchayat and snatched the file of his case from the Pradhan of the Gram Panchayat. It is the further evidence of this witness that Dittu Ram and Jagat Ram deceased consumed a bottle of liquor again at Gajre ki bouri’ but, surprisingly, no liquor was found in the visra of the deceased including intestines. Surprisingly, Pradhan of the Gram Panchayat from whom file was snatched by the deceased has not been examined. 15. It is the evidence of this witness that at Gabli ki Ghasni, each of the accused had given one or two danda blows to Jagat Ram. In his own words, "at Gabli, each accused had given one or two danda blows to Jagat Ram/ Therefore, there should have been more than five injuries on the person of deceased Jagat Ram but Doctor Tewari (PW 5) found only five injuries including the compound fracture of shaft radius and ulna. Dr. Tewari admits in his cross-examination that there was no external mark of the fracture of ulna. According to this witness (Devinder Kumar) accused after having beaten deceased, asked him to take Jagat Ram to his house and that he had helped Jagat Ram to wear his shoes and all of them, started walking towards village Sunna. He had also assured that he will not give evidence in favour of Jagat Ram. In the circumstances, it was not possible for him to have escaped. It is also not understood why this witness returned back towards village Dolli and joined Mahantu. He had also assured that he will not give evidence in favour of Jagat Ram. In the circumstances, it was not possible for him to have escaped. It is also not understood why this witness returned back towards village Dolli and joined Mahantu. Not only this, he comfortably slept in the house of Mahantu for the night and did not inform any person about the serious beatings having been given to deceased though, according to him, he apprehended that accused would liquidate Jagat Ram. 16. It is the evidence of this witness that danda blows were given by all the accused from behind. Therefore, injury No. 1 lacerated wound on the right eye brow could not have been caused by danda blow. In the words of Devinder Kumar in his examination-in-chief itself, "that Jagat Ram was given danda blows by all the accused. He was walking with me and the accused were immediately behind us". He admits that neither he nor Mahantu informed any person about the incident even next day morning. He straightway came to Sunna and reached the place at about 8.45 a.m. He did not even tell the police though police reached Sunna at about 10.00 a.m. The evidence of the witness in the circumstances is open to doubt and cannot be relied upon. 17. It is the evidence of Mahantu (PW 7) that house of one Sant Ram is near the place of occurrence, yet, neither Devinder Kumar nor Mahantu bothered to inform Sant Ram or ask for his help notwithstanding the fact that they feared death of Jagat Ram in the hands of accused. Mahantu (PW 7) admits that he did not go to the house of Sant Ram to tell him about the occurrence. The conduct of PW Devinder Kumar and Mahantu is unnatural and not compatible to their innocence. Devinder Kumar himself was the victim in the hands of the accused having been beaten and kicked. It, therefore, would have been natural for him to have atleast disclosed the incident to the police and other persons in the village when he came to know that Jagat Ram has died. In-action on the part of Devinder Kumar and Mahantu reveals more than what is given out. Devinder Kumar in his cross-examination admits: "I did not tell any body in the village about beating of Jagat Ram by the accused. In-action on the part of Devinder Kumar and Mahantu reveals more than what is given out. Devinder Kumar in his cross-examination admits: "I did not tell any body in the village about beating of Jagat Ram by the accused. Mahantu also did not tell about it to any person. In the morning, I also did not tell it to any person and I straightway came to Sunna. I reached Sunna at about 8.45 a.m. 18. An eye witness, who does not disclose the name of the assailant(s) or the incident immediately after the occurrence does not inspire confidence. In Panda Nana Kare v. State of Maharashtra, AIR 1979 Supreme Court 697, accused was charged for committing murder of the deceased by throwing a stone on his head while he was asleep. The eye witness was sleeping with the deceased on that night. However, he did not immediately disclose the identity of the assailants to the persons who assembled at the place of occurrence nor to the Doctors who attended on the deceased nor to the brother of the victim. The explanation of the witness was that accused was his sisters husband and so he did not want to implicate the accused. In these circumstances, learned Judges of the Supreme Court held that conviction could not be based on the testimony of such an eye witness nor all those witnesses who asserted that the eye witness told the name of the accused to them immediately after the occurrence. 19. Reference may also be made to State o/Karnataka v. Venkatesh and others, AIR 1992 Supreme Court 674; Supramanian v. State of Kerala, 1996 Supreme Court Cases (Cri) 176 and Harbans Lal v. State of Punjab, (1996) 2 Supreme Court Cases 350. 20. In case of Supramanian v. State of Kerala, a solitary eye witness did not come forward as a witness at the time of either inquest or earlier. In this context, it was observed that evidence of such a witness is to be scrutinized with great care and caution. 21. The conduct of Devinder Kumar (PW 6) and Mahantu (PW 7) in not reporting or informing any person about the incident and beatings given to Jagat Ram and not calling for the help of atleast Sant Ram who lived nearby, belies the version given by these two witnesses. 21. The conduct of Devinder Kumar (PW 6) and Mahantu (PW 7) in not reporting or informing any person about the incident and beatings given to Jagat Ram and not calling for the help of atleast Sant Ram who lived nearby, belies the version given by these two witnesses. It is curious that though Mahantu (PW 7) tells us that he was waiting for PW 6 Devinder Kumar at Sunna to give him the money which he owed to him, yet he did not pay that money to Devinder Kumar either at the place of occurrence or at his own house where Devinder Kumar spent the night. It is true that Mahantu is not an eye witness except that according to him, hot words were exchanged between Sat Pal (PW 1) and deceased Jagat Ram but according to prosecution version, Devinder Kumar had told Mahantu about deceased having been beaten with dandas by the accused and that he himself having escaped with difficulty. In these circumstances, it would have been natural for this witness to have called Sant Ram for help who lives in his neighbourhood or atleast disclosed the incident to the Police when he came to know about the death of Jagat Ram. It is only when the Investigating Officer Govind Ram (PW 15) sent for Devinder Kumar and Mahantu for their interrogation as they had been named in the FIR, that these two witnesses named the accused. It is the evidence of Inspector Govind Ram (PW 15) that he had sent for Jagan Nath, Devinder (PW) and Gita Ram who were mentioned as suspect in the FIR and it is then they named the accused persons. In these circumstances, the evidence of these witnesses does not inspire confidence and cannot be relied upon to convict the accused : (c) The statement of this witness was got recorded by the Police under Section 164 of the Code of Criminal Procedure during the investigation and therefore, his evidence become suspect. 22. It is not in dispute that statement of Devinder Kumar (PW 6) and Mahantu (PW 7) were recorded by the learned Chief Judicial Magistrate, Solan under Section 164 of the Code of Criminal Procedure on November 15, 1996 on the request made by S.H.O. Police Station, Ramshehar. 22. It is not in dispute that statement of Devinder Kumar (PW 6) and Mahantu (PW 7) were recorded by the learned Chief Judicial Magistrate, Solan under Section 164 of the Code of Criminal Procedure on November 15, 1996 on the request made by S.H.O. Police Station, Ramshehar. It is now well settled that if a statement of a witness is recorded under Section 164 of the Code of Criminal Procedure during the course of investigation or subsequent thereto but before the trial, it leads to an inference that there was a time when police thought that the witness may change mind and, therefore, the Court should be cautious in acting on the evidence of such a witness. Reference may be made to Ram Charan and others v. The State of U.P., 1968 Cr.L.J. 1473. 23. In Nanku and others v. The State, 1977 Cri.L.J. (NOC) 256 (All), it was held that evidentiary value of an eye witness who was examined under Section 164 of the Code of Criminal Procedure is rendered to its minimum. 24. The conduct of these two witnesses, discussed above, coupled with the fact that their statement was recorded under Section 164 of the Code of Criminal Procedure, renders their evidence unreliable more so when Devinder Kumar is named as suspect in the FIR lodged by none else than the real brother of the deceased. 25. To convict the accused learned trial Judge has relied heavily on the recoveries of Dandas Exts. PI6 to P20 at the instance of the accused to convict them. 26. Learned Counsel for the accused submits that recoveries of dandas at the instance of the accused is sham. Firstly contends learned Counsel for the accused, recoveries are not proved and, secondly, even if such recoveries may be said to be proved, the Dandas Exts. P16 to P20 are not proved to be weapon of offence. It is the evidence of Babu Ram (PW 1) that on October 25, 1996, Sat Pal (PW 1) gave a statement to the Police about he having kept a danda in his house and that Sat Pal went to the house and produced Danda which was taken into possession by the Police vide memo Ext. PW1/ F. He also goes on to state that Ramesh accused also gave statement Ext. PW1/G on the basis of which danda was recovered from his house. PW1/ F. He also goes on to state that Ramesh accused also gave statement Ext. PW1/G on the basis of which danda was recovered from his house. He similarly states about accused Gurdass, Amar Chand and Mohinder Singh. It is significant to note that according to this witness, Ramesh, Gurdass and Mohinder also gave separate statements to the police about having kept danda each in their house. Statement of Ramesh is placed on the record as Ext. PW 1/G. According to this document, Ramesh is supposed to have disclosed in his statement that he had kept a danda in his sleeping room. Similarly, Gurdass in his disclosure statement states that he had kept the danda hidden in his cow shed. But Inspector Govind Ram, the Investigating Officer (PW 15), tells us that Ramesh and Gurdass disclosed that they had thrown the dandas in ghasni. Dandas were searched but not found in the ghasni. In his own words, "Ramesh and Gurdass disclosed throwing dandas in Ghasni. These were searched in Ghasni but could not be found". It is thus apparent that no such disclosure statement(s) as recorded by the police were made by the accused. This apart, Head Constable Gopal (PW 14) tells us that he recorded the statement of Ramesh and Gurdass accused and thereafter both of them led the police which led to the recovery of Danda Ext. PI7 and P 18, respectively. However, he admits in his cross-examination that these two accused were handed over to him by the S.H.O. for recovery purposes. In other words, the S.H.O. knew that these two accused would made disclosure statement to the Head Constable and accordingly asked Head Constable to record their statements. In his own words, "I took the accused for interrogation for recovery purposes". Apparent as it is, the disclosure statements leading to the recovery of dandas are sham and not proved to have been made by the accused. We are constrained to observe that investigation in this case has been less than fair. Investigating Officer Inspector Govind Ram (PW 15) admittedly came to know the place of occurrence as Gabli Ghasni on the morning of October 23, 1996. We are constrained to observe that investigation in this case has been less than fair. Investigating Officer Inspector Govind Ram (PW 15) admittedly came to know the place of occurrence as Gabli Ghasni on the morning of October 23, 1996. It is also mentioned in the FIR that he collected blood stained earth from the place including a broken bottle of liquor yet, on October 25, 1996 when he arrested the accused, he recorded their disclosure statement disclosing the place of occurrence. It is the evidence of Govind Ram that accused Sat Pal, Ramesh and Gurdass disclosed about the place of occurrence and he accordingly prepared farad nishandehi Ext. PW1/P2, PW1/P4 and PW1/P1 which was signed by all the accused. It is his further evidence that accused thereafter led him to the place of occurrence to Gabli Ghasni. Apparent as it is, these statements of the accused were recorded simply to create evidence against them. By no stretch, these statements can be said to be disclosure statement(s) inasmuch as the Investigating Officer knew about the place of occurrence much before the arrest of the accused. It was merely a device on the part of the Investigating Officer to utilise the provision of Section 27 of the Evidence Act against the accused. Apart from this, we may also notice here that statements of the accused, while in custody, and having pointed out the place where they committed the offence are not admissible being of incriminating nature (See : Keramat Mandal and another v. King Emperor, AIR 1926 Calcutta 320). 27. In any event, these dandas Exts. P 16 to P20 are not linked with the commission of any offence. These dandas apparently were not stained with any blood. Had these dandas been weapon of offence, atleast one or two of the dandas would have been stained with blood. Learned Sessions Judge has wrongly relied upon the recovery of these dandas at the instance of the accused for convicting them. Prosecution is not entitled to draw any support from the alleged recovery of these dandas to convict the accused. 28. Apart from the evidence discussed above, there is no other evidence on record to link the accused with the death of Jagat Ram. Even the evidence of Dr. A.K. Tewari (PW 5) renders the complicity of the accused in the death of Jagat Ram open to doubt. According to Dr. 28. Apart from the evidence discussed above, there is no other evidence on record to link the accused with the death of Jagat Ram. Even the evidence of Dr. A.K. Tewari (PW 5) renders the complicity of the accused in the death of Jagat Ram open to doubt. According to Dr. Tewari, no injury was found on the vital part of the body of the deceased except injury No. 1, i.e., injury on the eye brow which is only skin deep. This injury also was not sufficient to cause death in the ordinary course of nature. Even Dr. Tewari admits," in the ordinary course, these injuries are not sufficient to cause the death. These injuries mean injuries No. 1, 3 and 4. Injury No. 2 fracture of ulna and radius is not sufficient to cause the death in the ordinary course". In other words, none of the injuries was sufficient to cause death either individually or cumulatively, though on re-examination by the learned Prosecutor, Doctor again makes a somersault and states that all the injuries cumulatively were sufficient to cause death due to haemorrhage and shock. 29. We find that the post-mortem conducted by Dr. Tewari is far from satisfactory. According to Dr. Tewari all the injuries were ante mortem in nature but when asked in the cross-examination as to what is the basis for his conclusion, he could only say "they were mentioned to be ante mortem keeping in view the colour and duration of the injury". The Doctor has not mentioned the colour of the injuries in his report nor did he keep any notes to tell the Court as to what was the colour of the injuries when he conducted the post mortem. In fact, he admits that fracture of ulna and radius could have been caused by fall if the support of fall is taken in hand, which is natural. He also admits that other injuries, except injury No. 1, could have also been caused by fall on a hard stony surface. He states that there were patterned bruises of lathi weapon but it has not been mentioned in the post mortem report. According to him, there was more than one kg. of blood in the fractured arm. Again the same is not mentioned in the post mortem report nor is there any observation to this effect in any other document. He states that there were patterned bruises of lathi weapon but it has not been mentioned in the post mortem report. According to him, there was more than one kg. of blood in the fractured arm. Again the same is not mentioned in the post mortem report nor is there any observation to this effect in any other document. It is his evidence that he did not prepare any notes while conducting the post mortem. The entire evidence of this witness shows that he has been casual in the conduct of the post mortem. 30. The Doctor has opined that the death was caused due to haemorrhage and shock. Haemorrhage, according to Modi in his Medical Jurisprudence and Toxicology, produces marked fall of blood pressure and consequent shock causing death either rapidly, if a large blood vessel, such as the carotid or femoral artery, has been wounded, or slowly, if a number of small vessels have been injured. In the present case, according to Doctor, death occurred within one hour of the injury as per his post mortem report Ext. PW5/A, Therefore, large blood vessels ought to have been involved in the injury but in the report, the doctor does not say that large blood vessel was involved. In his cross-examination, he states "I have not mentioned that major blood vessel was involved". 31. This apart, according to Dr. Tewari, he opined the injuries to be ante mortem because of the colour and duration of injuries. Modi in his Medical Jurisprudence and Taxicology, 83 Print 1997 Edition at page 288 has given a table showing the distinction between ante-mortem and Post-mortem wounds. The table may be reproduced: Ante-mortem Wounds Post-mortem Wounds 1. Haemorrhage, more or less copious and generally arterial. 1. Haemorrhage, slight or none at all and always venous. 2. Marks of spouting of blood from arteries. 2. No spouting of blood. 3. Clotted blood. 3. Blood is not clotted: if at all it is a soft, clot-current jelly or chicken fat clot. 4. Deep staining of the edges and celiular tissues, which is not removed by washing. 4. The edges and cellular tissues are not deeply stained. The staining can be removed by washing. 5. The edges gape owing to the normal stretched condition of the skin and muscle fibres. 5. 4. Deep staining of the edges and celiular tissues, which is not removed by washing. 4. The edges and cellular tissues are not deeply stained. The staining can be removed by washing. 5. The edges gape owing to the normal stretched condition of the skin and muscle fibres. 5. The edges do not gape, but are closely approximated to each other, unless the wound is caused within one or two hour after death. 6. Inflammation and reparative processes. 6. No inflammation or reparative processes. 7. Early enzyme reactions seen. 7. Enzyme reactions absent. 32. We notice that neither the colour of the injury nor duration of injuries is a factor which distinguishes ante-mortem injury to postmortem injury. The relevant factors as given by Modi had not been considered by the Doctor which renders his opinion open to doubt. 33. Fields in his Expert Evidence, Third Edition (2000) at page 280, observed: "If the injuries were inflicted immediately after the death, there would still be bleeding and the same symptoms would be present." 34. In the circumstances of this case, particularly when postmortem has not been conducted properly, the possibility of the injuries having been caused due to fall and some of them having been caused after the death of deceased Jagat Ram cannot be entirely ruled out. 35. In view of the evidence of Joginder (PW 16) the prosecution case becomes doubtful. It is the evidence of Joginder that on the fateful night, he was taking his truck from Ropar to Dolli. He reached Sunna at about 9.00 p.m. and saw Jagat Ram at a place 60 to 65 mtrs. away from Sunna. He was going towards Sunna. At that time, Jagat Ram was alone and he was walking in a zigzag manner. It is his evidence that at that point of time, he did not see any injury on his person. This witness has been cross-examined by the learned Prosecutor but without any tangible result. In fact, the version given by this witness was supported by Investigating Officer when in his cross-examination, he admits, "it came in my investigation that Joginder Driver met Japat Ram near Nalwa. At that time, as per investigation, Jagat Ram was alone and coming towards Sunna. It was 8.30 p.m. As per evidence of Joginder, Jagat Ram was under the influence of liquor." 36. At that time, as per investigation, Jagat Ram was alone and coming towards Sunna. It was 8.30 p.m. As per evidence of Joginder, Jagat Ram was under the influence of liquor." 36. It is thus evident that when Joginder saw Jagat Ram, he was only 60 to 65 mtrs. away from village Sunna and was in inebriated state and was alone. The evidence of Joginder Lal is incompatible with the prosecution case. 37. We notice that Jagat Ram deceased was quite unpopular in his area. He had a criminal history and was involved in number of cases including that of rape. Devinder Kumar (PW 6) admits in his cross-examination : "It is correct that Jagat Ram was prosecuted for raping wife of Baldev. It is correct that Jagat Ram was also prosecuted for raping wife of Ram Lai of Sunna village. Employees of Irrigation Department went on strike for alleged beating of Het Ram, pump house chowkidar by Jagat Ram." 38. DW 2 Ram Singh, M.H.C. of Police Station Ramshehar proves copies of FIR Ext. Dl, D2, D3 from the register of FIR. Now perusal of these documents shows that Savitri Devi wife of deceased Jagat Ram had filed a criminal case against her husband under Sections 498-A, 323 and 506, IPC alleging that her husband had tried to kill her by sprinkling kerosene on her. Ext. D2 is a copy of FIR lodged by one Baldev against deceased Jagat Ram for offences punishable under Sections 376, 511 alleging that Jagat Ram deceased tried to commit rape on his wife after gagging her. She was rescued by two other ladies. Ext. D3 is again copy of FIR lodged by Savitri Devi wife of the deceased again for offence punishable under Sections 498-A, 506 and 323 of the Indian Penal Code. Ext. D4 is copy of the charge framed against the deceased Jagat Ram for offences punishable under Sections 457, 427 and 506 of the Indian Penal Code on the complaint lodged by employees of Public Works Department. Ext. D5 shows that Jagat Ram was involved in six police cases out of which two were pending investigation and two pending hearing. One of the cases was withdrawn by his wife apart from a case under Section 107 read with Section 151 of the Code of Criminal Procedure. Ext. D5 shows that Jagat Ram was involved in six police cases out of which two were pending investigation and two pending hearing. One of the cases was withdrawn by his wife apart from a case under Section 107 read with Section 151 of the Code of Criminal Procedure. It is surprising that Investigating Officer in his evidence expressed ignorance about the criminal history of deceased Jagat Ram though all the cases pertained to his own police station. This speaks volumes about the fairness of the investigation. 39. It is established that deceased was not a popular person in his area and there were many in his own village who would have wanted to get rid of him. 40. The inevitable conclusion on the the appreciation of the evidence discussed above is that prosecution has not been able to establish case against the accused beyond suspicion but suspicion, we hardly need to emphasise, is no substitute for proof. (See Jahar Lal Das v. State of Orissa, (1991) 3 SCC 27). There is a long distance between prosecution case being may be true and must be true, such a distance has to be travelled, by the prosecution, by unimpeachable evidence which lacks in the present case. 41. No other point is urged before us. 42. In result, we accept the appeal. The impugned judgment of the Sessions Judge and consequent conviction of the accused is set-aside. The accused are acquitted. Their bail bonds are discharged. They be released forthwith if not required in any other case. The fine, if realized, shall be refunded back to them. The case property shall be dealt with in accordance with the orders of learned Sessions Judge. Appeal allowed.