JUDGMENT M.R. Verma, J.:—Since both these appeals arise out of the same judgment, therefore, are being disposed of by this common judgment. 2. Brief facts leading to the presentation of these appeals are that on 8.12.1998 at about 8.30 p.m. Udho Ram (PW 5) gave telephonic information to the police at Police Station, Dhalli regarding an incident of beating of Om Vir (since deceased and hereafter referred to as the deceased) within his residence in New Ram Niwas, Dr. Ambedkar Colony, Dhalli, Shimla-12. After recording the message in the form of report No. 35 of Daily Diary. A.S.I. Bhagat Ram (PW-11) proceeded to the spot and recorded statement of PW-5 under Section 154 Cr.P.C. Ext.PW-5/A. As per the statement Ext. PW-5/A, on 8.12.1998 at about 8.30 p.m. when PW-5 was in his house in the aforesaid Colony he heard the deceased crying for help. PW-5 came out of his house and in the meanwhile Desh Raj (PW-6) a resident of the same locality, also came on the road. Both of them went to the house of Om Vir, knocked at the door but the door was found locked from inside whereas the deceased was raising alarm from inside the room. PW 5 and PW-6 then went to the house of Desh Raj and PW-5 telephonically informed the police, as aforesaid. After having sent the telephonic message PW-5 and PW-6 returned back to the road in front of the residential room of Om Vir. At that time appellant accused Ajay Sharma in Criminal Appeal No. 29 of 2001 (hereafter referred to as the accused), who was having a knife in his right hand, after opening the door, came out of the room of Om Vir. He bolted the door of the room from outside and declared that he had done away with the deceased and none should talk about it. Thereafter, accused Ajay Sharma carrying the knife in his hand ran away towards the main road. After sometime the police party alongwith accused Ajay Sharma came on the spot. The police entered into the residential room of the deceased and found his dead body lying in a pool of blood in the room. It has further been stated in Ext. Thereafter, accused Ajay Sharma carrying the knife in his hand ran away towards the main road. After sometime the police party alongwith accused Ajay Sharma came on the spot. The police entered into the residential room of the deceased and found his dead body lying in a pool of blood in the room. It has further been stated in Ext. PW-5/A that Bhagat Ram respondent in Criminal Appeal No. 88 of 2001 and a co-accused before the trial Court (hereafter referred to as the accused) wanted to evict the deceased from the premises in his occupation as a tenant. Regarding one of the attempt of accused Bhagat Ram to forcibly dispossess the deceased case FIR No. 241/96 was registered at Police Station, Dhalli. About two months before the occurrence accused Bhagat Ram had deputed accused Ajay Sharma to get the room in possession of the deceased vacated and as a consequence accused Ajay Sharma had beaten up the deceased and his brother several times and had threatened the deceased that in the event of his failure to vacate the premises he would kill him. On the basis of statement Ext. PW-5/A, an FIR Ext.PW-5/B under Sections 302, 452, 506 and 120-B of the Indian Penal Code was registered at Police Station, Dhalli and the investigation followed. During investigation spot map Ext.PW-1/A was got prepared from Rajesh Kumar (PW-1). Accused Ajay Sharma was got medically examined by Lalit Mahajan (PW-2) Medical Officer Casualty, IGMC, Shimla, who issued MLC Ext. PW-2/A about such examination of accused Ajay Sharma. Accused Ajay Sharma was again medically examined on 10.12.1998 by the same Medical Officer vide MLC Ext. PW-2/B. Santosh Kumar (PW-3), a police photographer, took the photograph of the dead body and the spot Exts. P-l to P-12 negatives whereof are Ext. P-13. The Investigating Officer (PW-11) took in possession clotted blood from the place of occurrence vide recovery memo Ext. PW-6/A. The post mortem examination of the dead body of the deceased was got conducted from V.K. Mishra (PW-10) who vide his report Ext.PW-10/A found the following ante mortem external injuries oh the dead body: 1. Dried and clotted blood present over the face, chest, shoulder left side and back region left side. 2. The wearing shirt and pant was having blood stain marks and cut marks on the shirts (clothes were dried and preserved). 3. An incised vertical wound 6 cm. Dried and clotted blood present over the face, chest, shoulder left side and back region left side. 2. The wearing shirt and pant was having blood stain marks and cut marks on the shirts (clothes were dried and preserved). 3. An incised vertical wound 6 cm. x 1 cm. x 1/2 cm. present on the outer angle -of left eyebrow, underlying frontal bone visible. 4. A vertical incised wound 1 and 1/2 cm. x 1/4 cm. x 1/4 on the left cheek region 3 cm. laterally and downward to the outer canthus of left eye. 5. A horizontal incised wound 4 cm. x 1 cm. bone deep on the forehead right side just above the right eyebrow. Three photographs taken during post mortem examination. 6. A vertical stab wound on the left side of the chest 4 cm. medial to left nipple between 4th and 5th ribs measuring 2 cm. x 1/2 cm. and entering into the right ventricle of the heart, spindle shaped. 7. A stab wound on left shoulder 1 cm. x 1/2 cm. x 4 cm. x 8 cm. lateral to acromion process. 8. A stab wound on posterior aspect of chest 1 cm. x 1/2 cm. x 1.5 cm. 6 cm. below the posterior axillary line, spindle shaped. 9. Multiple abrasions on the back region on the area of 32 cm. x 25 cm. dark brown in colour. 10. Three horizontal leniar abrasions on the lateral aspect of the left leg. Heights of abrasions from heel 17 cm. 7 cm. x 1/2 cm, 19 cm. 8 cm. x 1/2 and 22 cm. 3 cm. x 1/2 cm. dark brown in colour. PW-10 had also handed over the sweat shirt, T-shirt and the pant of the deceased to the police. As per his opinion, the deceased died due to hemorrhagic shock and cardiac tamponade secondary to multiple stab wounds. 3. During the course of investigation, accused Ajay Sharma made a disclosure statement Ext. PW-7/A in the presence of Om Parkash (PW-7) and Yog Raj (PW-8) about the weapon of offence and as a consequence of such statement and at the instance of accused Ajay Sharma knife Ext.P-2 was recovered vide Memo Ext. PW-7/B in the presence of the aforesaid witnesses. During the course of investigation, accused Ajay Sharma made a disclosure statement Ext. PW-7/A in the presence of Om Parkash (PW-7) and Yog Raj (PW-8) about the weapon of offence and as a consequence of such statement and at the instance of accused Ajay Sharma knife Ext.P-2 was recovered vide Memo Ext. PW-7/B in the presence of the aforesaid witnesses. The sketch of the knife Ext.F-2 is Ext.PW-7/C, the spot map of the place of recovery is Ext.PW-11/B. Various blood stained articles taken in possession by the police and the viscera preserved by PW-10 were sent for chemical analysis and the report about the analysis of the viscera received from the State Forensic Science Laboratory is Ext. PW-10/A and such report about the result of analysis of the blood stained articles is Ext. PW-10/ B. The police also took in possession the certified copies of the petition filed by accused Bhagat Ram for eviction of the deceased Ext.PW-13/A, reply thereto filed by the deceased Ext. PW-13/B, Rejoinder to the reply of the deceased by accused Bhagat Ram Ext. PW-13/C and the order regarding withdrawal of the petition passed by the concerned Tribunal Ext. PW-13/ D. After completion of the investigation and on being satisfied of the commission of offences by the accused persons, the Officer-in-charge, Police Station, Dhalli, submitted a charge-sheet against the accused persons under Sections 302, 452, 506 and 120 IPC. 4. The trial against the accused persons was held by the learned Additional Sessions Judge, Shimla. Accused Ajay Sharma was tried for a charge under Sections 452 and 302 IPC whereas accused Bhagat Ram was tried on a charge under Section 120-B IPC. 5. To prove the charge against the accused persons, prosecution examined as many as 13 witnesses. Statements of the accused under Section 313 Cr.P.C. were recorded wherein they denied the case of the prosecution and claimed that they are innocent and have falsely been implicated in the case. Accused, however, did not lead any defence evidence. By the impugned judgment, the learned trial Judge convicted accused Ajay Sharma under Sections 452 and 302 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs. 1,000 and in default of payment of fine for three months imprisonment under Section 452 IPC and to life imprisonment and fine of Rs. By the impugned judgment, the learned trial Judge convicted accused Ajay Sharma under Sections 452 and 302 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs. 1,000 and in default of payment of fine for three months imprisonment under Section 452 IPC and to life imprisonment and fine of Rs. 2,000 and in default of payment of fine to undergo further imprisonment for six months under Section 302 IPC. Accused Bhagat Ram, however, was acquitted of the charge against him. 6. Aggrieved by the conviction and the sentence awarded to him accused Ajay Sharma has preferred Criminal Appeal No. 29 of 2001 and aggrieved by the acquittal of accused Bhagat Ram State of Himachal Pradesh has preferred Criminal Appeal No. 88 of 2001. 7. We have heard the learned Counsel for the accused persons and the learned Additional Advocate General for the State and have also gone through the records. 8. There is no dispute that the deceased died of the injuries found on his person. The dispute between the parties is that according to the prosecution the fatal injuries were caused to the deceased by accused Ajay Sharma pursuant to a conspiracy between him and accused Bhagat Ram because the latter wanted to get the premises occupied by the deceased as his tenant vacated whereas according to the accused persons they are innocent and the case against them is false. Thus, the real question in controversy is whether the fatal injuries to the deceased were caused by accused Ajay Sharma pursuant to a conspiracy between him and accused Bhagat Ram. 9. To prove its case the prosecution relied on the following evidence:— (i) Ocular version of the occurrence as given by Udho Ram (PW-5) and Des Raj (PW-6); (ii) The recovery of weapon of offence under Section 27 of the Evidence Act; (iii) Finding of human blood on the pant of accused Ajay Sharma vide report Ext. PW-10/B; and (iv) Motive to get the premises in possession of the deceased as tenant vacated. (i) Ocular version : 10. Udho Ram (PW-5) and Des Raj (PW-6) are the alleged eye witnesses of the occurrence. Vide Paras-27 and 28 (remunerated as such) of the impugned judgment it is evident that the prosecution conceded before the trial Court that some material facts stated by PW-5 do not find mention in his statement Ext. (i) Ocular version : 10. Udho Ram (PW-5) and Des Raj (PW-6) are the alleged eye witnesses of the occurrence. Vide Paras-27 and 28 (remunerated as such) of the impugned judgment it is evident that the prosecution conceded before the trial Court that some material facts stated by PW-5 do not find mention in his statement Ext. PW-5/A recorded under Section 154 of the Code of Criminal Procedure and similarly1 PW-6 stated facts not disclosed in his statement under Section 161 Cr.P.C. and both of them had improved upon their initial version as given during investigation. Vide Para-36 of the judgment even the learned trial Judge observed that both these witnesses have improved upon their earlier statements. A comparative reading of their statements further reveals that they have even contradicted each other on material particulars. Therefore, their evidence has to be subjected to strict scrutiny. 11. PW-5 has stated that he heard the cries of the deceased from inside his room, therefore, he went to the front side of the room of the deceased and in the meanwhile PW-6 also reached there. He pushed the door but it was bolted from inside. Therefore, he, alongwith PW-6 peeped into the room through a window pane and "found accused Bhagat Ram and Ajay Sharma made the deceased stand alongside the wall of the room and giving beatings to him." Then they left to inform the police telephonically. What PW-6 saw while peeping through the window in his own words is that "accused Bhagat Ram having caught hold of the deceased with his hand whereas with another pressed his mouth. Accused Ajay Sharma was inflicting the injury on the person of the deceased with knife which is Ext. P-2." On seeing this both of them left to make a call to the police and telephonically informed the police about the occurrence. However, the description of occurrence given by them apparently vary on material particulars as much as according to PW-5 deceased was being beaten up by the accused persons whereas according to PW-6 accused Bhagat Ram had overpowered the deceased and accused Ajay Sharma was causing injuries to him with knife. This contradiction in the version of PW-5 and PW-6 cannot be said minor or negligible in nature, more so when admittedly both of them saw the occurrence at the same time from the same place. This contradiction in the version of PW-5 and PW-6 cannot be said minor or negligible in nature, more so when admittedly both of them saw the occurrence at the same time from the same place. The information conveyed to the police by PW-5 telephonically in the presence of PW-6 was that "someone is beating Om Veer in his room at Ambedkar Nagar Dhalli" as stated by ASI Bhagat Ram (PW-11). In case the occurrence was witnessed by PW-5 and PW-6 as stated by them in the Court, there is no explanation as to why they did not disclose the names of the assailants to the police while giving the telephonic information. PW-5 has given the improved version of having seen the occurrence by peeping through the window as it is not so stated by him in his statement under Section 154 Cr.P.C. Ext. PW-5/A wherein he has stated that PW-6 and he on hearing the cries "knocked the door of Om Veer which was bolted from inside and Om Veer was crying inside the room whereupon we both from the house of Des Raj informed the Police Station, Dhalli on the telephone about this incident that Om Veer Bhaiya was being beaten by someone who broke into his room and bolted the door from inside." PW-6 denied making of statement as recorded by the I.O. under Section 161 Cr.P.C. His version is that when the police reached on the spot, his statement was recorded by the I.O. and was got signed from him. PW-6 has stated that after arriving on the spot ASI Bhagat Ram (PW-11) reduced into writing the statement of Shri Des Raj in the street light. Thereafter my statement was also recorded which is Ext. PW-5/A" which is signed by him. Thus, if the statement of PW-6 was recorded at the first instance and was signed by him that statement in fact ought to be the basis for recording the formal FIR. However, such signed statement of PW-6 does not form part of the record and the formal FIR is based on statement Ext. PW-5/A of PW-5 which was recorded after recording the statement of PW-6. Prosecution has no explanation to offer in this regard. However, such signed statement of PW-6 does not form part of the record and the formal FIR is based on statement Ext. PW-5/A of PW-5 which was recorded after recording the statement of PW-6. Prosecution has no explanation to offer in this regard. Therefore, it is legitimate to infer that the FIR is the outcome of due deliberations and consultations and is based on the statement of PW-5 recorded subsequently to the recording of statement of PW-6 the other alleged eye witness of the occurrence. PW-5 is an interested witness who has admittedly reported /instituted more than a dozen civil and criminal cases against accused Bhagat Ram and PW-6 is his witness in some of such cases. PW-5 and PW-6 both have stated about the presence of and assistance given by accused Bhagat Ram at the time of causing of injuries to the deceased by accused Ajay Sharma. However, the version in the FIR Ext. PW-5/A is that when accused Ajay Sharma was beating the deceased, accused Bhagat Ram was in the adjoining room. Thus, statements of PW-5 and PW-6 are inconsistent and contradictory of each other, therefore, highly unreliable. (ii) Recovery of Weapon of Offence under Section 27 of the Evidence Act : 12. According to the prosecution, accused Ajay Sharma while in custody made disclosure statement Ext. PW-7/A in the presence of Om Parkash (PW-7) and Yog Raj (PW-8) and as a consequence knife Ext. P-2 was recovered vide memo Ext. PW-7/B at his instance and it was identified as weapon of offence by PW-5 and PW-6. 13. PW-8 has denied making of disclosure statement Ext.PW-7/A by accused Ajay Sharma and has also denied recovery of knife Ext. P-2 at the instance of the accused in his presence. He was declared hostile and was cross-examined by the prosecution but there is nothing in this statement to suggest that he has made a false statement for any reason whatsoever. 14. PW-7 is the brother of deceased. He has also denied making of disclosure statement Ext. PW-7/A by accused Ajay Sharma. In his examination-in-chief he has also denied recovery of knife Ext.P-2 at the instance of the accused. However, in his cross-examination by the prosecutor, he stated that knife Ext.P-2 was recovered from the bushes at the instance of accused Ajay Sharma. He has also denied making of disclosure statement Ext. PW-7/A by accused Ajay Sharma. In his examination-in-chief he has also denied recovery of knife Ext.P-2 at the instance of the accused. However, in his cross-examination by the prosecutor, he stated that knife Ext.P-2 was recovered from the bushes at the instance of accused Ajay Sharma. Having made two contradictory statements at different stages, PW-7 cannot be believed about the recovery of knife Ext.P-2 at the instance of the accused. It is though true that a disclosure statement need not be made by an accused person in the presence of witnesses but once the prosecution claims that such a statement was made in the presence of witnesses, the version will be rendered unreliable if not supported by such witnesses. 15. The statement of I.O. (PW-11) about the making of the disclosure statement Ext. PW-//A by accused Ajay Sharma is also not reliable. In his cross-examination PW-11 has stated that the accused made the disclosure statement on the "following morning". He has not clarified whether by "following morning" he meant the morning following the occurrence which took place on 8.12.1998 or the morning following the arrest of accused Ajay Sharma on 9.12.1998. Therefore, what can be said is that as per the aforesaid statement of PW-11, accused Ajay Sharma made the disclosure statement on the morning following 8th or 9th day of December, 1998 whereas the statement Ext. PW-7/A purports to have been recorded on 11.12.1998 that is on the fourth day of the occurrence and third day of his arrest. The prosecution has not been able to clarify this confusion about the actual date of recording of the disclosure statement Ext. PW-7/A rendering its version about the disclosure statement and recovery of knife Ext. P-2 doubtful. 16. There is no reliable evidence to connect the knife Ext. P-2 with the injuries found on the person of the deceased. The prosecution has not shown the knife Ext.P-2 to the medical expert to have his opinion whether injuries found on the dead body of the deceased were capable of being caused by it. Even the trial Court did not ask for clarification from the medical expert (PW-10-A). Cross-examination for the accused appears to have been conducted in this regard by putting a few general questions answers to which do not lead anywhere. However, a perusal of the contents of recovery memo Ext. Even the trial Court did not ask for clarification from the medical expert (PW-10-A). Cross-examination for the accused appears to have been conducted in this regard by putting a few general questions answers to which do not lead anywhere. However, a perusal of the contents of recovery memo Ext. PW-7/B, description of injuries as mentioned in the post mortem report Ext. PW-10/A and as stated by PW-10 and the sketch map of knife Ext. P-2 make it clear that injury Nos. 6, 8 to 10 as in the statement of PW-10 are apparently incapable of being caused by the knife Ext. P-2. The identification of the knife Ext.P-2 by PW-5 and PW-6 as weapon of offence while appearing as witnesses in the Court is simply unreliable. 17. In view of the above discussion, it is evident that this circumstance is not proved. (iii) Finding of Human Blood on the pant of accused Ajay Sharma : 18. As per the report Ext. PW-10/B human blood was found on the pant of accused Ajay Sharma. This report was admitted in evidence in the statement of PW-10 as report of the Chemical Examiner. A perusal of this report, however, reveals that it is not report of the Chemical Examiner which is per se admissible in evidence under Section 293 of the Code of Criminal Procedure. In fact, this is a report signed by a "Scientific Officer" of the H.P. State Forensic Science Laboratory Junga. 19. In State of H.P. v. Edward Samual Chareton, 2001 Cr.L.J. 135 j, a Division Bench of this Court while dealing with the scope of Section 293 of the Code of Criminal Procedure held as under : "It is, thus, manifest from the bare reading of the above quoted provisions that the reports under the hand of such Government Scientific Experts as mentioned hereinabove only can be read in evidence without formal proof. The report Ext. PK relied upon by the learned Sessions Judge to hold that the recovered article is Charas is signed by Junior Scientific Officer (Tox.), Central Forensic Science Laboratory, Chandigarh who is not one of such Government Scientific Officers as mentioned in Section 293 of the Code. Therefore, the report Ext. PK could not be read in evidence unless the signatory of the report was examined to prove it. Therefore, the report Ext. PK could not be read in evidence unless the signatory of the report was examined to prove it. The conclusion of the learned Sessions Judge that the recovered article is Charas based on the report Ext. PK, which has not been proved in accordance with law, is thus not sustainable." 20. In view of the above settled position in law, report Ext. PW-10/ B not being a report by an expert as mentioned in Section 293 of the Code of Criminal Procedure is not per se admissible in evidence and the Scientific Officer who has signed this report has not been examined by the prosecution to prove the opinion given vide Ext. PW-10/B. Hence, this circumstance is not proved in accordance with law. (iv) Motive : 21. According to the prosecution accused Bhagat Ram wanted his room rented out to the deceased vacated and to achieve his object he conspired with accused Ajay Sharma to get the premises vacated by use of intimidation and force. Be it stated that motive is a highly fragile circumstance to support a criminal charge. In the case in hand this circumstance appears to be a far fetched thing to rope in accused Bhagat Ram in the case. Primarily there is no reliable and cogent evidence to prove these allegations. Secondly it is clear from the contents of Ext. PW-13/A that accused Bhagat Ram had instituted a petition on 30.4.1997 for eviction of the deceased from the premises on the ground of non payment of rent, the deceased had filed a reply thereto on 13.11.1997 a copy whereof is Ext. PW-13/B and copy of rejoinder filed by accused Bhagat Ram on 26.5.1998 is Ext.PW-13/C. At the time of occurrence on 8.12.1998 such petition was pending disposal and had not been so pending for long. Therefore, having taken recourse to a lawful remedy it is highly doubtful that accused Bhagat Ram would conspire to eliminate the deceased to get the room vacated. This circumstance is, therefore, of no help to the prosecution. 22. There are circumstances which render the prosecution version highly unreliable. It is not in dispute but is admitted even by the I.O. (PW-11) that when after receipt of telephonic information about "someone beating" the deceased, the police party headed by him went to the spot accused Ajay Sharma was also taken by them to the spot. 22. There are circumstances which render the prosecution version highly unreliable. It is not in dispute but is admitted even by the I.O. (PW-11) that when after receipt of telephonic information about "someone beating" the deceased, the police party headed by him went to the spot accused Ajay Sharma was also taken by them to the spot. It is admitted case of the prosecution that till the police party reached on the spot they were not aware of the particulars of the assailants. Thus, why they took accused Ajay Sharma to the spot is not explained. The police had reached on the spot around 8.45 p.m. on 8.12.1998 and on the basis of Ext. PW-5/A had come to know about the alleged assailants. Even accused Bhagat Ram was called by the police to the spot around 10 p.m. as stated by PW-6. Statements of PW-5 and PW-6 had by then been recorded. Why they were not arrested at that time and why their arrest wag deferred till the next day is also not explained. This circumstance also lends credibility to the inference that the case against the accused persons is outcome of consultations and deliberations. 23. It is not in dispute that at the place of occurrence there are many residential buildings number whereof is about 25 according to PW-6. In case the cries of the deceased could be heard by PW-5 and PW-6, there is no reason to believe that other inhabitants of the locality did not hear such cries and did not attempt to find out the cause for the same. However, none of such inhabitants had been examined by the prosecution. PW-11 admits that he tried to associate the local residents in the investigation but none was "ready". It is not believable that all the inhabitants of the locality would maintain silence qua a gruesome murder if they are aware of it. Thus, non production of anyone of such inhabitants who could be termed as disinterested witnesses as compared to PW-5 and PW-6 also casts shadow of grave doubts about the prosecution version. 24. The above discussion leads us to the conclusion that the charges framed against the accused persons are not proved. Therefore, the conviction and sentence of accused Ajay Sharma deserve to be set aside and acquittal of accused Bhagat Ram deserves to be sustained. 25. 24. The above discussion leads us to the conclusion that the charges framed against the accused persons are not proved. Therefore, the conviction and sentence of accused Ajay Sharma deserve to be set aside and acquittal of accused Bhagat Ram deserves to be sustained. 25. As a result, Criminal Appeal No. 29 of 2001 preferred by accused Ajay Sharma is allowed and his impugned conviction and sentence are set aside and he is acquitted of the charge against him and Criminal Appeal No. 88 of 2001 preferred by the State against acquittal of accused Bhagat Ram is dismissed. 26. Accused Ajay Sharma who is in jail undergoing the sentence of imprisonment awarded to him, 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.