JUDGMENT M.R. Verma, J.—Since both these appeals arise out of the same judgment dated 19.1.2000 passed by the learned Sessions Judge, Chamba, therefore, these are being disposed of by this common judgment. 2. Criminal Appeal No. 126 of 2000 (Sarif Mohammad v. State of H.P.) has been preferred by Sarif Mohammad, appellant/accused (hereafter referred to as the accused) who has been convicted under Sections 302, 307, 396, 364 read with Section 120-B of the Indian Penal Code, Section 4 of the Indian Explosive Substances Act, 1908 read with Section 120-B of the Indian Penal Code and .Section 27 of the Indian Arms Act read with Section 120-B of the Indian Penal Code and has been sentenced to imprisonment for life under Section 302 read with Section 120-B of the Indian Penal Code and fine of Rs. 5,000 and in default of payment of fine to undergo simple imprisonment for six months, rigorous imprisonment for ten years and fine of R>. 2,000 and in default of payment of fine to undergo simple imprisonment for six months under Section 307 read with Section 120-B of the Indian Penal Code, to undergo imprisonment for life and fine of Rs. 5,000 and in default of payment of fine to suffer further simple imprisonment for six months under Section 396 read with Section 120-B of the Indian Penal Code, rigorous imprisonment for three years and fine of Rs. 1,000 and in default of payment of fine to suffer simple imprisonment for one month under Section 364 read with Section 120-B of the Indian Penal Code, simple imprisonment for one year and fine of Rs. 1,000 and in default of payment of fine to suffer further simple imprisonment for one month under Section 27 of the Indian Arms Act and rigorous imprisonment for one year and fine of Rs. 1,000 and in default of payment of fine to undergo simple imprisonment for one month under Section 4 of the Indian Explosive Substances Act, 1908. 3. Criminal Appeal No. 258 of 2000 (State of H.P. v. Ahmed Deen and others) has been preferred by the State against the acquittal of the respondents/accused (hereafter referred to as the accused). 4. The case of the prosecution, in brief, is that on the night intervening 2nd/3rd of August, 1998 some unknown extremists shot dead 35 Labourers at Kharui-di-Behi at Kalaban and Satrundi. 4. The case of the prosecution, in brief, is that on the night intervening 2nd/3rd of August, 1998 some unknown extremists shot dead 35 Labourers at Kharui-di-Behi at Kalaban and Satrundi. The incident was reported to HC Pritam Chand (PW-1) by Nasar Deen (PW-8) and Dhian Singh at Police Check Post, Mansa. PW-1 conveyed the information regarding the incident to Police Station Tissa vide wireless message Ext. PA whereon FIR Ext. PBE was recorded at Police Station Tissa and Chuni Lai, SI. S.H.O. Police Station, Tissa (PW-25) proceeded to the spot, who conducted a part of the investigation in the case and thereafter investigation was taken over by Jeet Singh, Inspector (PW-26) who was specially deputed to investigate the case. During the investigation it was found that in the year 1997 accused Sarif Mohammed was seen talking in Kashmiri dialect to certain persons armed with guns and believed to be extremists at Mandi-dhar. Thereafter he contacted accused Billu alias Bali Mohammed and they started planning to help the extremists. The investigation further revealed that accused Sarif Mohammed and Bali Mohammed were suspected of helping the extremists in killing four persons earlier at Bajubag. It was also found that -accused Sarif Mohammed and Bali Mohammed held a meeting with the extremists wherein they were offered a sum of Rs. 20,000 by the extremists for arranging explosive material for them. Accused Sarif Mohammed and Bali Mohammed then went to Kalaban and informed the extremists about the availability of explosive material at Kalaban. On 2.8.1998 accused Sarif Mohammed met labour Mate Sher Singh and requested him to employ him as a labourer. At that time he exploded a few mines also without charging any wages. Before meeting said Sher Singh, accused Sarif Mohammed had made enquiries from Latif Mohammed at Kharui-di-Behi about the labourers of Sher Singh in the presence of accused Ahmed Deen alias Waziru. On the same day in the evening when Latif Mohammed had gone to collect fuel wood from the jungle, he saw accused Sarif Mohammed talking to two strangers and saw him returning to the tent of accused Waziru. When Latif Mohammed enquired from accused Sarif Mohammed as to why he had come to Kalaban a far off place to seek employment, accused Sarif Mohammed informed him that he had a quarrel with his family members and he would not return to his house. When Latif Mohammed enquired from accused Sarif Mohammed as to why he had come to Kalaban a far off place to seek employment, accused Sarif Mohammed informed him that he had a quarrel with his family members and he would not return to his house. Accused Sarif Mohammed at that time enquired from Latif Mohammed as to what was in the boxes kept in the tent and Latif Mohammed informed him that the boxes contained gelatine and other explosive material. Accused Sarif Mohammed stayed in the tent with accused Waziru, Latif Mohammed and Tej Singh. During the night a few extremists entered into that tent, awoke the persons sleeping in the tent. The extremists who were wearing black clothes, demanded explosive material from those present in the.tent and Tej Singji informed them that there was no explosive. However, accused Sarif Mohammed took out the explosive substances from inside the tent. The occupants of the tent were then commanded by the extremists to come out of the tent and took Latif Mohammed and Tej Singh to another tent along with the explosive material at gun point with the assistance of accused Sarif Mohammed and Waziru. Thereafter all the labourers, present there, were taken to the tent of said Waziru and their hands were tied at their backs and were then shot dead by the extremists. In all, 24 persons were killed on the spot whereas three were injured. Thereafter the extremists left towards Satrundi and went to the hotel of Kalu Ram where seven persons were sleeping. The extremists robbed them of their belongings and after making enquiries about their religion, they made them to sit and shot them dead. 5. It was further found during the investigation that at a place known as Khol near Satrundi, Nasar Deen and Chamaru were carrying consignment of shoes on their mules. The extremists met them there and demanded their torches. Then, they took Nasar Deen and Chamaru towards Kharui-di-Behi. However, on the way Nasar Deen found Chamaru Ram missing who was later found to have been killed. 6. After killing the labourers at the hotel of Kalu Ram, the extremists went back and brought six Hindus from Satrundi. They also brought with them one gunny bag containing shoes. The Hindus who were brought by them, were asked to carry the explosive etc. and were taken towards Jot side. 6. After killing the labourers at the hotel of Kalu Ram, the extremists went back and brought six Hindus from Satrundi. They also brought with them one gunny bag containing shoes. The Hindus who were brought by them, were asked to carry the explosive etc. and were taken towards Jot side. At that time accused Sarif Mohammed and Waziru had conversation with the extremists in Kashmiri language and they gave a pair of shoes to accused Sarif Mohammed and also asked him to accompany them but accused Sarif Mohammed refused and promised to accompany them the second time. Thereafter the Hindus were separated from accused Sarif Mohammed, Waziru and said Latif Mohammed and were takento a Kotha. The extremists thereafter crossed the Jot and accused Sarif Mohammed, Waziru and said Latif Mohammed etc. returned back. At that time accused Sarif Mohammed threatened Latif Mohammed that he should not disclose the true facts to anyone and if he did so he would be got killed from the extremists. 7. Inquest reports regarding dead bodies taken into possession by the police, were prepared and their post mortem examination was got done. As per the opinion given by the Medical Officers (PWs 14,19, 20, 21 and 22) who conducted the post mortem examination of the dead bodies, 29 of the deceased had suffered bullet injuries and six dead persons had sustained injuries with sharp-edged weapons. Injured Hari Singh was got medically examined and the MLC. Ext. PBC was obtained about his medical examination. 8. After arrest accused Sarif Mohammed made a disclosure statement disclosing the place where he had met the extremists in Kharui-di-Behi and discussed with them about the availability of the explosives. A pair of shoes was also taken in possession by the police from accused Sarif Mohammed which was identified as the pair of shoes given to him by the extremists. 9. On being satisfied of the commission of the offences punishable under Sections 302, 307, 396, 364 of the Indian Penal Code, Section 27 of the Indian Arms Act and Section 4 of the Indian Explosive Act read with Section 120-B of the Indian Penal Code by the accused persons, the police submitted a charge-sheet against accused Sarif Mohammed, Ahmed Deen alias Waziru, Hasan Deen and Bali Mohammed alias Billu who came to be tried for the commission of the said offences by the learned Sessions Judge, Chamba. 10. 10. To prove the charge against the accused persons prosecution examined as many as 34 witnesses. Statements of the accused persons under Section 313 of the Code of Criminal Procedure were recorded wherein they denied the prosecution case. The accused persons, however, did not lead any defence. 11. On consideration of the material on record, the learned trial Judge acquitted accused Ahmed Deen alias Waziru, Hasan Deen and Bali Mohammed alias Billu but convicted accused Sarif Mohammed as aforesaid. Hence the present appeals. 12. We have heard the learned Counsel for the accused persons and the learned Assistant Advocate General for the State and have also gone through the records. 13. It may be pointed out at the very outset that it is not in dispute that on the night intervening 2nd and 3rd of August, 1998 some unknown extremists killed 24 labourers at Kalaban, 6 labourers on the way from Kalaban to Satrundi and 5 labourers at Satrundi, looted explosive material and removed it beyond Jot the accused persons are alleged to be the co-conspirators in the commission of the said crimes. Therefore, the only question for determination in these appeals is whether the prosecution has proved that the accused persons or one or more of them had conspired with the extremists and/or amongst themselves in the commission of the crimes. To prove the allegations against the accused persons, the prosecution relied on the circumstantial evidence. 14. When two or more persons agree to do something contrary to law or to use unlawful means in carrying out an object not otherwise unlawful, such persons who so agree, commit the crime of conspiracy. There should be prima facie evidence that a person was a party to conspiracy before his act can be used against him or against his co-conspirator. There is no difference between the mode of proof of conspiracy and that of any other offence, therefore, conspiracy can be established by direct or by circumstantial evidence. Ordinarily, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence thereof. Therefore, generally it is on the basis of the circumstantial evidence that conspiracy has to be proved and established and for that purpose inferences can be drawn from the circumstances appearing against the accused. Ordinarily, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence thereof. Therefore, generally it is on the basis of the circumstantial evidence that conspiracy has to be proved and established and for that purpose inferences can be drawn from the circumstances appearing against the accused. However, when prosecution relies on circumstantial evidence to prove criminal conspiracy, it is necessary to establish the circumstances so as to lead to the only conclusion of such conspiracy ruling out any likelihood of innocence of the accused. 15. In Kehar Singh and others v. The State (Delhi Admn.), AIR 1988 SC 1883, the Honble Apex Court held as follows : "Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient...." 16. In Yash Pal Mital v. The State of Punjab, AIR 1977 SC 2433, the Honble Apex Court held as under: "......The very agreement concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy..." 17. In Hari Ram v State of Himachal Pradesh, 1982 Cri.L.J. 294, a Division Bench of this Court held: "12...................The guest of this offence is, therefore, the agreement. Direct proof of the conspiracy is of course seldom available. In a case of conspiracy when there is no direct evidence as in the instant case, inferences from the proved facts and circumstances to a large extent form the basis of the Courts conclusion. In dealing with such cases based on circumstantial evidence, however, an inference of guilt need only be drawn when the circumstances are such as to be incapable of being reasonably explained on any other hypothesis than the guilt of the accused......." 18. Keeping in view the aforesaid admitted facts and the position in law, we now proceed to examine and appreciate the material on record. 19. Keeping in view the aforesaid admitted facts and the position in law, we now proceed to examine and appreciate the material on record. 19. To prove the charge against the accused persons prosecution has relied on the following circumstances: (i) In the year 1997 when Hans Raj, Ramesh, Suresh Kumar and Hanif had gone to Mandi Dhar to collect herbs, they found accused Sarif Mohammad talking to the extremists in Kashmiri dialect; (ii) Accused Sarif Mohammad contacted accused Billu alias Bali Mohammad and thereafter they had been planning to help the extremists, and it was suspected that in the killing of the four persons at Bajubag by the extremists accused Sa. * Mohammad and Bali Mohammad had assisted them; (iii) Accused Sarif Mohammad and Baif Mohammad arranged a meeting with the extremists wherein the extremists offered them a sum of Rs. * Mohammad and Bali Mohammad had assisted them; (iii) Accused Sarif Mohammad and Baif Mohammad arranged a meeting with the extremists wherein the extremists offered them a sum of Rs. 20,000 if explosive material was arranged for them by the said accused persons; (iv) After the aforesaid offer, accused Sarif Mohammad and Bali Mohammad went to Kalaban and after having come to know that explosive material was available there, they reported about such availability to the extremists; (v) On 2.8.1998 accused Sarif Mohammad met labour mate Sher Singh at Kalaban after making enquiries from Latif Mohammad at Kharui-di-Behi about the labourers of Sher Singh in the presence of accused Ahmad Deen, and requested Sher Singh to employ him as labourer and exploded a few mines for Sher Singh without charging any wages; (vi) On the evening of 2.8.1998 Latif Mohammad while collecting fuel wood in the jungle, saw accused Sarif Mohammad talking to two strangers and for the night he stayed in the tent of accused Ahmad Deen alias Waziru; (vii) When Latif Mohammad asked accused Sarif Mohammad as to why he had come from a far off place to seek employment in Kalaban, Sarif Mohammad informed him that he had a quarrel with his family members and he would not return to his house, and simultaneously enquired from Latif Mohammad as to what was there in the boxes kept in the tent and Latif Mohammad informed him that Gelatines and explosive material was kept in the boxes; (viii)The active assistance rendered by accused Sarif Mohammad and Ahmad Deen in removing the boxes containing the explosive substances from inside the tent and their accompanying the extremists to Jot: and accused Sarif Mohammad having conversation with them in Kashmiri language; (ix) Giving a pair of shoes by the extremists to accused Sarif Mohammad and asking him to accompany them and his promising to accompany them second time; (x) When Latif Mohammad and accused Sarif Mohammad and Ahmad Deen alias Waziru etc. were returning from 7°*/ accused Sarif Mohammad threatened Latif Mohammad not to disclose the true facts to anyone otherwise he would get him killed by the extremists; (xi) The statement by accused Sarif Mohammad disclosing the place where he had met the extremists in Kharui-di-Behi and discussed about the occurrence, and his consequential taking of the police to such place; (xii) Recovery of a pair of shoes by the police from accused Sarif Mohammad which was identified as the pair of shoes given to him by the extremists; and (xiii) Extra judicial confession by accused Sarif Mohammad that accused Bali Mohammad alias Billu had arranged his meeting with the extremists in his Kotha and the offer of the extremists to pay Rs. 20,000 in case explosive material was arranged for them and regarding informing accused Bali Mohammad alias Billu by him about the availability of explosive material at Kalaban. 20. Circumstance No. (i) To prove that in 1997 accused Sarif Mohammad had talks with the extremists in Kashmiri dialect and told them that they should not cause harm to his companions as he had to live with them and communal harmony should not be disturbed, the prosecution examined Hans Raj (PW-11) and Suresh Kumar (PW-17). In their examination-in-chief none of these witnesses supported the prosecution version and they were declared hostile and were cross-examined for the prosecution. Nothing favourable to the prosecution could be extracted in such cross-examination of PW-17. PW-14 in his cross-examination for the prosecution admitted that accused Sarif Mohammad had the said talk with the person armed with guns in Kashmiri and further told them not to disturb the communal harmony. The statement of this witness when read as a whole, is self-distroying as he has made self-contradictory statement at different stages. Moreover, Kashmiri language is admittedly not known to him and the alleged conversation between the said persons and accused Sarif Mohammad, admittedly, took place in Kashmiri language, therefore, even if there was any conversation, he was uncapable of understanding it. The other persons allegedly present at the time of such conversation, have not been examined. This circumstance is, therefore, not proved. 21. Circumstances No. (ii), (Hi), (iv) and (xiii) Since these circumstances are interconnected, therefore, are taken up together for discussion. 22. To prove these circumstances, the prosecution has relied on the statements of Dina Nath (PW-10), Amar Singh (PW-12) and Suresh Kumar (PW-17). This circumstance is, therefore, not proved. 21. Circumstances No. (ii), (Hi), (iv) and (xiii) Since these circumstances are interconnected, therefore, are taken up together for discussion. 22. To prove these circumstances, the prosecution has relied on the statements of Dina Nath (PW-10), Amar Singh (PW-12) and Suresh Kumar (PW-17). PW-12, who was declared hostile and cross-examined for the prosecution, has not supported the prosecution version in any manner. PW-17, who was also declared hostile, has not supported the prosecution version on this count. He has denied having seen any extremist visiting the house of accused Billu alias Bali Mohammad. Though he has admitted that accused Sarif Mohammad and Bali Mohammad used to have long conversation but it was open conversation in the presence of other persons. He has specifically denied the knowledge of any other fact of the case. 23. PW-10 to whom accused Sarif Mohammad had allegedly made an extra-judicial confession about his involvement in the conspiracy, has stated that on 4.8.1998 accused Sarif Mohammad came to his shop and he was perplexed and frightened. On enquiries, said accused informed him that accused Bali Mohammad alias Billu Gujjar had arranged a meeting with an extremist who had asked him to arrange for the explosive material for which he would be paid a sum of Rs. 20,000. The witness has further deposed that Sarif Mohammad further informed him that thereafter he went to Kalaban in connection with arranging explosive material and returned with the information that such material was available on Kalaban and informed accused Billu accordingly. He further confessed that extremists and Billu then took him to Kalaban where he informed the persons who enquired from him as to why he had come to Kalaban that he had come there in connection with his employment. According to PW-10, it was further disclosed by accused Sarif Mohammad that during the night the extremists came there and mounted an attack on the labourers and thereafter took explosive material and other articles towards 7°* side but did not pay the aforesaid amount to him. 24. There is no dispute that there is no relationship of any kind between PW-10 and accused Sarif Mohammad. 24. There is no dispute that there is no relationship of any kind between PW-10 and accused Sarif Mohammad. It is admitted by PW-10 who is a shop-keeper, that accused Sarif Mohammad was not known to him prior to the occurrence and he was informed by other persons sitting in the shop that the person making the extra judicial confession was Sarif Mohammad. He further admits that Sarif Mohammad had gone to his shop without any purpose and after disclosing the aforesaid facts, he went away. Thus, it is a case of making an extra judicial confession by the accused to an absolute stranger with whom he has nothing to do. Basically, extra judicial confession is a weak piece of evidence and when allegedly made to a stranger without any purpose, is rendered unnatural and unreliable. Therefore, statement of PW-10 is highly unreliable. 25. There is no evidence that accused Billu had accompanied accused Sarif Mohammad to Kalaban or was present there at or around the time of occurrence. Further, there is not even an iota of evidence to prove that accused Sarif Mohammad and Bali Mohammad had assisted the extremists in killing four persons on an earlier occasion. Even the case of the prosecution is not that they did so but the case is that they are suspected of such assistants. There is no evidence even to justify such suspicion. In any case the suspicion how-so-ever strong, cannot take place of proof. 26. The above discussion leads us to the conclusion that these circumstances are not proved. 27. Circumstances Nos. (v), (vi), (vii), (viii) and (x). Since these circumstances are also interconnected and are sought to be proved by the same set of evidence, therefore, these are taken up together for discussion. 28. To prove these circumstances prosecution has relied on the statements of Dina Nath (PW-10), Narain Singh (PW-27), Dhian Singh (PW-5), Beli Ram (PW-6) and Latif Mohammad (PW-13). We have already discussed the statement of PW-10 in the earlier part of the judgment and found it to be unnatural and unreliable. 29. Before discussing the statements of the other aforesaid witnesses, it may be pointed out that presence of accused Waziru in Kalaban on 2nd and 3rd August, 1998 is not in dispute. We have already discussed the statement of PW-10 in the earlier part of the judgment and found it to be unnatural and unreliable. 29. Before discussing the statements of the other aforesaid witnesses, it may be pointed out that presence of accused Waziru in Kalaban on 2nd and 3rd August, 1998 is not in dispute. Presence of accused Sarif Mohammad in Kalaban on the said dates is not seriously disputed and is otherwise fully established in view of the material on record, particularly the evidence of PW-7, PW-5, PW-6 and PW-13. The case of the prosecution is that after the extremists had agreed to pay a sum of Rs. 20,000 to Sarif Mohammad and Bill Mohammad alias Billu for supplying them explosive, they both went to Kalaban, collected information about availability of explosive material and passed on such information to the extremists. However, there is no evidence about accused Bill Mohammad alias Billu having visited Kalaban with Sarif Mohammad or his having conveyed any information to the extremists. The statement of PW-10 having been disbelieved, there is no other evidence to believe the version that it was pursuant to the alleged offer of the extremists that accused Sarif Mohammad had gone to Kalaban to find out about the availability of the explosive material there. It is against this background that the statements of the aforesaid witnesses are required to be examined and appreciated. 30. According to PW-27, accused Sarif Mohammad stayed in his quarter in village Guddan on the night intervening 1st and 2nd of August, 1998 and left in the early hours of the following morning. PW-7 in her examination-in-chief has stated that accused Sarif Mohammad visited her tent in Kharui-di-Behi on 2.8.1998, once in the morning and then in the afternoon for taking tea and on her asking, informed that his name was Sarif Mohammad and he was resident of village Kihar and had come there in search of work. At that time Sarif Mohammad was in pensive mood and was roaming about aimlessly. She has further stated that during night her husband woke her up and told that there was a lot of noise and then both of them came out of the tent and encountered an extremist who asked them to get inside the tent. Another extremist then appeared on the scene and her husband was taken away. She alerted her sister. She has further stated that during night her husband woke her up and told that there was a lot of noise and then both of them came out of the tent and encountered an extremist who asked them to get inside the tent. Another extremist then appeared on the scene and her husband was taken away. She alerted her sister. Thereafter she saw accused Sarif Mohammad, Waziru and one more person carrying luggage on their shoulders. Two extremists thereafter came to her tent and took away her torch. 31. PW-5 and PW-6 at the relevant time were working as daily-wage labourers with contractor Des Raj and on the fateful night were sleeping in a tent at Kharui-di-Behi. According to PW-5, on the fateful night at about 2 or 2.30 a.m. eight nine extremists accompanied by accused Sarif Mohammad and Waziru, entered the tent and asked the inmates to hand over all their belongings and the inmates complied. The extremists took possession of the belongings of the inmates. Accused Sarif Mohammad and Waziru collected gelatine, detonators and conductor wires and put them in the bags. The inmates of the tent were then taken to the tent of accused Waziru and the extremists told them that they would only tie their hands and leave the place along with their belongings without killing them. Accused Waziru advised them to get their hands tied and not try to run away and no harm would be caused to them. Their hands were thereafter tied behind their backs. The extremists ascertained their last choice and when the inmates replied in the negative, they were made to sit and then gun shots were fired at them by the extremists. Thereafter the extremists fled away. 32. According to PW-6, around midnight eight or nine persons entered their tent and woke all those sleeping in the tent. The intruders were armed with guns and were accompanied by accused Waziru, Sarif Mohammad and one Bittu. It was pitch dark but the witnesses recognized Sarif Mohammad and Waziru. The persons who had so arrived in the tent asked the inmates that they would tie their hands and demanded all their belongings including cash etc. and the inmates complied. The intruders were armed with guns and were accompanied by accused Waziru, Sarif Mohammad and one Bittu. It was pitch dark but the witnesses recognized Sarif Mohammad and Waziru. The persons who had so arrived in the tent asked the inmates that they would tie their hands and demanded all their belongings including cash etc. and the inmates complied. Accused Waziru, Sarif Mohammad and said Bittu left with the looted material and the inmates were then taken by the extremists to the nearby tent of accused Waziru who had advised them that they should get their hands tied from the extremists and no harm would be caused to them and this assurance was given by accused Sarif Mohammad also. Thereafter the hands of the inmates brought to the tent of Waziru were tied at their back. They were then asked to sit and thereafter the extremists opened fire and then fled away. 33. PW-13 at the relevant time was working as a labourer under accused Waziru who was the Mate. According to him, accused Sarif Mohammad had come to his tent and made enquiries about the labourers of Sher Singh and also informed him that he was in search of employment. After staying in the tent for sometime, Sarif Mohammad left the place. The witness also left the place, At about 11.00 a.m. accused Waziru, Sarif Mohammad and the witness returned to the tent, prepared the meals which was served to accused Sarif Mohammad also who thereafter left the tent. At about 5.30 p.m. when the witness had gone to the jungle to collect fire wood, he saw accused Sarif Mohammad talking with two unknown persons wearing black clothes. Sarif Mohammad returned to the tent at 6.00 p.m. at that time the witness enquired from him as to why he had come to that place from such a far off place to seek employment whereupon accused Sarif Mohammad replied that he had quarrel with his family and would not return to his house again. He had made enquiries from the witness as to what was kept in the tent and the witness informed him that gelatine, explosive material etc. was kept in the boxes. For the night Sarif Mohammad slept in the tent. Around midnight one extremist came to the tent, woke all the inmates. He had made enquiries from the witness as to what was kept in the tent and the witness informed him that gelatine, explosive material etc. was kept in the boxes. For the night Sarif Mohammad slept in the tent. Around midnight one extremist came to the tent, woke all the inmates. When the witness tried to come out of the tent, the extremist threatened him to stay inside the tent otherwise he would be shot. Then all of them were asked to come out and following the command, the witness, Waziru and Tej Singh came out of the tent while accused Sarif Mohammad remained sleeping in the tent. When the extremists enquired about the person sleeping in the tent, he was informed that he was Sarif Mohammad and the extremists enquired as to who was Sarif Mohammad. At that point of time Sarif Mohammad came out of the tent. The extremists directed them to bring out the explosive which the inmates of the tent, except accused Sarif Mohammad, refused to do. However, accused Sarif Mohammad brought out the explosive boxes from the tent. Thereafter the extremists who were eight in all, took all of them to the other tent. There also the extremists took possession of the explosive material kept inside the second tent along with other belongings of the labourers at the gun point and asked the witness, Nasar Deen accused Waziru and Sarif Mohammad to pick up the material and four of the extremists then took them towards Satrundi. On the way they were joined by four other extremists but Nasar Deen ran away. Two of the extremists had gone towards Satrundi and returned back with some labourers and one gunny bag containing shoes. Thereafter three extremists left for Satrundi and five accompanied the aforesaid persons to Jot. At a place below Jot the extremists made enquiries from the persons carrying the explosives etc. whether they knew Kashmiri. Accused Sarif Mohammad told them that he knew Kashmiri. Thereafter some discussion took place between accused Sarif Mohammad and the extremists in Kashmiri dialect. Finally, they crossed the Jot and reached a Nallah where the extremists took out one pair of shoes and gave it to accused Sarif Mohammad and also asked him to accompany them but he refused and promised to go with them the second time. Thereafter some discussion took place between accused Sarif Mohammad and the extremists in Kashmiri dialect. Finally, they crossed the Jot and reached a Nallah where the extremists took out one pair of shoes and gave it to accused Sarif Mohammad and also asked him to accompany them but he refused and promised to go with them the second time. After arranging some meals all of the Mohammedan present on the spot were allowed to go but the Hindus were detained back. When the witness and party crossed the Jot while returning, accused Sarif Mohammad told him that he had seen one extremist at Mandi Dhar and threatened his other companions that they should not disclose the true facts and should tell people that because of fog at the Jot they escaped, otherwise he would get them killed by extremists. 34. As seen here-in-above, the aforesaid witnesses in their examination-in-chief have by and large supported the prosecution version about the happenings at Kalaban and PW-13 has further supported prosecution version about the happenings on way to a place beyond Jot, in the Nallah on the way, the place where meal was served, and at the time of their return journey. However, there are material contradictions in the statements of these witnesses as also material admissions in their cross-examination which render their pro-prosecution version unreliable. It may be pointed out here that it is stated by PW-5, PW-7 and PW-13 that accused Sarif Mohammad had informed them on their enquiries that he had gone to Kalaban to seek employment. PW-5 Dhian Singh has further stated that regarding his employment accused Sarif Mohammad had met Mate Sher Singh and even exploded certain mines evidently to show his worth to work as a labourer with him. Thus, his going away from his place where he had to earn his livelihood admittedly by collecting herbs from the forests is not such a circumstance from which it may be inferred that he had gone to Kalaban with some ulterior motive. His having been found in pensive mood and wandering aimlessly, as stated by PW-7, in the face of the stated purpose of accused Sarif Mohammad in going to Kalaban is also natural as he was in a new place with the strangers. 35. His having been found in pensive mood and wandering aimlessly, as stated by PW-7, in the face of the stated purpose of accused Sarif Mohammad in going to Kalaban is also natural as he was in a new place with the strangers. 35. The inference regarding complicity of Sarif Mohammad and Waziru in the commission of the offences can be drawn from the statements of PW-5, PW-6 and PW-7 regarding accused Sarif Mohammad and Waziru accompanying the extremists and carrying the looted luggage and material only if it is shown that they were acting voluntarily to give active assistance to the extremists. It is admitted by PW-5 Dhian Singh that after the occurrence they have lost faith in Muslim community and do not want to keep any relation with them. It may be noticed that all the accused in the case are Muslims. He has further admitted that accused Sarif Mohammad and Waziru were asked by the extremists (who were armed with guns) to put the material in the bags. He has further admitted that accused Sarif Mohammad, Waziru and one Bittu were taken by the extremists with them for carrying the looted material. However, these three were not the only persons so taken. Other persons were also forced by the extremists to carry the luggage and material. Similarly, PW-6 Beli Ram had admitted that the extremists were terrorising Waziru and Sarif Mohammad and were directing them to put the looted material in the bags. Even PW-13 had admitted that in all the extremists had taken along with them nine persons and all of them were taken by the extremists at gun point. He has further admitted that the explosive material was handed over to the extremists as they were directed to do so at gun point and were warned that in case the explosive material was not handed over, they would be shot. He has further admitted that they were threatened by the extremists that in case they revealed the truth, they would meet the same fate as other persons had met at Kalaban. He has further admitted that the extremists had taken a sum of Rs. 5,000 from accused Waziru along with his wrist watch. It is also admitted by PW-13 that on the way the extremists had been kicking and poking them with the barrels of the guns. 36. He has further admitted that the extremists had taken a sum of Rs. 5,000 from accused Waziru along with his wrist watch. It is also admitted by PW-13 that on the way the extremists had been kicking and poking them with the barrels of the guns. 36. Nasar Deen (PW-8) who was one of the persons to carry the looted material had stated that he had to so carry the material because he was terrorised by the extremists and he had no other option. He has further stated that three other persons also lifted the luggage and all of them were escorted by the extremists. He has further stated that they were commanded by the extremists that the luggage was to be taken to the top of the hill and they would not let them go unless the luggage was dropped there. He has further stated that the extremists used to give kick blows to him for moving swiftly and has also admitted that the other labourers (carrying the luggage) also used to cry but he is not aware whether they were, given kick blows by the extremists. 37. It is evident from the said admissions made by all the material witnesses that the acts of accused Waziru and Sarif Mohammad in accompanying the extremists and carrying the looted material were not voluntary but as a result of threats and terror. In a situation as created by the extremists different people will react differently but mostly abide by even a nod of the person who is in full control of their life and death. Some may resist the command for some time but will submit when satisfied that more insistence may result in bodily injury or death. Some may not resist at all. This is human nature and natural human conduct. It cannot, therefore, be said that accused Sarif Mohammad and Waziru voluntarily rendered help to the extremists. Had they been in league with the extremists, Waziru would not have refused to part with the explosive as he did according to PW-13. Sarif Mohammad would not have remained sleeping in a tent wherein there was pitch dark on the arrival of the extremists who had commanded the inmates to come out of the tent. Had he been a privy to the offence, he would have been the first person to come out of the tent. 38. Sarif Mohammad would not have remained sleeping in a tent wherein there was pitch dark on the arrival of the extremists who had commanded the inmates to come out of the tent. Had he been a privy to the offence, he would have been the first person to come out of the tent. 38. The allegation that accused Waziru and Sarif Mohammad advised the inmates of the tent to allow their hands to be tied and not to run away, is also not proved because of contradictory statements of the witnesses on this count. According to PW-5, it was only accused Waziru who told the inmates of the tent that they should get their hands tied and should not run away, whereas according to PW-6, they were assured by accused Waziru and Sarif Mohammad of their safety if they allowed their hands to be tied. According to PW-13, after having looted the second tent, the extremists directed him and others including accused Waziru and Sarif Mohammad to pick up the looted material and four of them took them towards Satrundi. Thus, though admittedly present at the time of occurrence, he has not stated anything about such advice or assurance given to the inmates of the tent either by accused Waziru or by Sarif Mohammad. This witness has not stated even about bringing of the captives to the first tent where their hands were tied and they were made to sit and some of them shot dead. Had accused Waziru been a co-conspirator, he would not have been robbed of money and wrist watch as stated by PW-13. 39. It may be pointed out here that during investigation the police got the statement of PW-13 recorded under Section 164 of the Code of Criminal . Procedure which is Ext. PH. The evidence of a prosecution witness, whose statement had been previously recorded under Section 164 of the Code of Criminal Procedure, is always suspect and cannot be accepted as the whole truth and without any reservations. Therefore, the evidence of such a witness must be read with due care and caution. 40. Procedure which is Ext. PH. The evidence of a prosecution witness, whose statement had been previously recorded under Section 164 of the Code of Criminal Procedure, is always suspect and cannot be accepted as the whole truth and without any reservations. Therefore, the evidence of such a witness must be read with due care and caution. 40. In Ram Charan and others v. The State of U.P., AIR 1968 SC 1270, the Honble Apex Court held as under : "(9) The learned Counsel further relies on the following passage from the judgment of Dhavle, J. in Emperor v. Mann Chik, AIR 1938 Pat 290 at p. 259. "There is yet another circumstances which calls for rerhark, and that is the examination of Ladhu and Rebi among other witnesses under Section 164, Criminal Procedure Code. It was pointed out by Prinsep, J., in the well-known case in Queen Empress v. Jadub Das, (1900) ILR 27 Cal 295 that a statement of a witness obtained under this section always raises a suspicion that it has not been voluntarily made, and that the section was not intended to enable the police to obtain a statement from some person (in that case it was an incriminating statement) and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken." (10) These observations were dissented from by the Andhra Pradesh High Count in In re Gopisetti Chinna Venkata Subbiah, ILR (1955) Andhra 633 at p. 638 : AIR 1955 Andhra 161 at pp. 163-164 and Subba Rao, C.J., preferred the following observations of the Nagpur High Court in Parmanand v. Emperor, AIR 1940 Nag. 340. We are of the opinion that if a statement of a witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness stick to the statement made by him throughout, the mere fact that his statements was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon/ (11) We agree with Subba Rao, C.J., that the observations of the learned Judges of the Nagpur High Court lay down the law correctly." 41. In view of the above settled position of law, the statement of PW-13 has to be read with caution and cannot be taken as a gospel truth. His statement that accused Sarif Mohammad was asked by the extremists to accompany them and he told them to accompany them the next time, appears to be an after thought because he had not made such a statement to the police in his statement Ext. PJ recorded under Section 161 of the Code of Criminal Procedure. As per his statement Ext. PH recorded under Section 164 of the Code of Criminal Procedure, he had seen accused Sarif Mohammad talking to two persons in the jungle before 12 Oclock on 2.8.1998 when he was going to do his work. However, in his statement in the Court he has stated that he had seen accused Sarif Mohammad talking to two strangers in the jungle at about 5-5.30 p.m. when he had gone to the jungle to collect fuel wood. About giving of a pair of shoes by the extremists to accused Sarif Mohammad, his version in Ext. PH is that it was so given when they had gone about 2 Kms. beyond Satrundi whereas his statement in the court is that the pair of shoes was so given by the extremists when they had crossed the Jot and reached a Nallah. There are contradictions in his version of the occurrence and the versions given by PW-5 and PW-6 regarding the occurrence at Kharui-di-Behi. A comparison of his statement Ext. PH and the statement made in the Court reveals various additions and omissions in his version, therefore, his statement is not reliable. 42. In view of the above discussion, only circumstance No. (v) is established to the extent that on 2.8.1998 accused Sarif Mohammad came to Kalaban and requested Mate Sher Singh to employ him as a labourer and demonstrated his skills in exploding the mines. 42. In view of the above discussion, only circumstance No. (v) is established to the extent that on 2.8.1998 accused Sarif Mohammad came to Kalaban and requested Mate Sher Singh to employ him as a labourer and demonstrated his skills in exploding the mines. None of the other circumstances are established so as to raise an inference of the complicity of any of the accused in the commission of the crimes in any manner. 43. Circumstances No. (ix) and (xii) Since both these circumstances are interconnected, therefore, these are taken up together for discussion. 44. According to the prosecution version, the extremists gave a pair of shoes to accused Sarif Mohammad. During investigation police took it possession the pair of shoes Ext. P-l vide memo. Ext. PB, on production by Sarif Mohammad in the presence of Nasar Deen (PW 8) and Gurdev (PW-33). PW-13 has stated that after crossing the Jot when they reached in a Nallah, the extremists took out one pair of shoes and gave it to accused Sarif Mohammad. We have already concluded that the statement of this witness is not reliable. 45. According to PW-8, he had identified a pair of shoes at the Police Station which was taken in possession vide memo. Ext. PB but was not sealed in his presence. The seized pair of shoes Ext. P-l has been denied by him to be the pair of shoes which was earlier identified by him and taken in possession by the police. He has stated that the shoes which were taken in possession by the Police, were different from Ext. P-l. PW-13 has also stated that one pair of shoes was shown to him by the Police which he identified as part of the consignment and it was taken in possession by the Police and was sealed vide memo. Ext. PB. He was also shown the pair of shoes taken in possession by the Police and he has stated that such pair is not the same which was shown to him by the Police and was "Gurgabi" type. The pair of shoes Ext. P-l was not got identified from PW-13. Thus, this recovery, is nothing but mere farce. 46. In view of the above discussion, these circumstances are also not established. 47. Circumstances No. (xi) According to the prosecution, accused Sarif Mohammad had made a disclosure statement Ext. The pair of shoes Ext. P-l was not got identified from PW-13. Thus, this recovery, is nothing but mere farce. 46. In view of the above discussion, these circumstances are also not established. 47. Circumstances No. (xi) According to the prosecution, accused Sarif Mohammad had made a disclosure statement Ext. PF that on 2.8.1998 at about 2-2.30 a.m. along with accused Waziru he met four extremists accompanied by Bashir in the bushes growing below Kharui-di-Behi road and he could show the place. As a consequence of the statement, he had shown some place to the police vide memo. Ext. PG. 48. In Suresh Kumar v. State of H.R, 2000 (2) Shim. L.C. 275, this court held as under: "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..." 49. In Sanjay Kumar v. State (Criminal Appeal No. 254.98, decided on 19.5.2000), while discussing the provisions of Section 27 of the Evidence Act, a Division Bench of this Court held as follows: "15. A bare reading of the above provision makes it clear that if pursuant to the information given by the accused while in police custody a fact is discovered only then such information will be admissible in evidence to the extent it distinctly relates to the fact discovered. In other words if such information does not lead to recovery i.e. to discovery of any relevant fact it will be inadmissible in view of the provisions of Section 26 of the Evidence Act." 50. The expression "fact" as used in Section 27 of the Evidence Act is in the sense of physical or material fact which can be perceived by the senses and cannot be construed to include "mental fact". The Section therefore, comes into operation when a person in police custody produces from some place of concealment some object like a dead body, weapon, ornament or any other material object capable of being perceived by the senses on the basis of prior information given by him. The Section therefore, comes into operation when a person in police custody produces from some place of concealment some object like a dead body, weapon, ornament or any other material object capable of being perceived by the senses on the basis of prior information given by him. Thus, the fact discovered must be such that the proof of its existence does not depend on the credibility of the accused or any other person but is confirmed by the production of the object itself. 51. Admittedly, the alleged disclosure statement of accused Sarif Mohammad did not lead to any such discovery of fact in this case. Hence this circumstance is inadmissible in evidence. 52. It may be noticed that there is not even an iota of evidence to prove the involvement of Hasan Deen in the commission of the offence alleged to have been committed by him and it was so conceded even by the Public Prosecutor before the learned trial Judge. 53. The above discussion leads us to the conclusion that the prosecution has failed to prove the charge against the accused persons. 54. In view of the above findings, we hold that accused Ahmad Deen alias Waziru, Hasan Deen and Bali Mohammad, respondents in Criminal Appeal No. 258 of 2000, have been rightly acquitted by the learned trial Judge. However, he has fallen in error in convicting accused Sarif Mohammad. Therefore, conviction of and sentence awarded to accused Sarif Mohammad, are liable to be set aside. 55. As a result, Criminal Appeal No. 126 of 2000 is allowed. The conviction of and sentence awarded to accused Sarif Mohammad are set aside and he is acquitted of the charge against him. Since he is in jail undergoing the sentence of imprisonment awarded to him, therefore, he be set at liberty forthwith unless required to be detained in custody under any other process of law. Fine, if recovered, be refunded to him. Criminal Appeal No. 258 of 2000 is dismissed and the acquittal of the respondents therein as recorded by the learned Sessions Judge, is affirmed. Bail bonds furnished by the said respondents are discharged.