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2004 DIGILAW 311 (HP)

RAJ KUMAR v. STATE OF H. P.

2004-11-19

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J,—Appellant Raj Kumar faced trial for the alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short "the IPC"), for having committed the murder of his brother Ashwani Kumar @ Pinku. The learned Additional Sessions Judge, Una, found the appellant to be guilty and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 3,000/-, in default of payment of fine, he shall suffer simple imprisonment for further period of three months. 2. Prosecution version as unfolded during trial may briefly be stated thus : 3. On October 1, 1998 at about 7.45 a.m., PW-7 Balbir Singh, Ward Panch and Nambardar of Halqua Bhadorkali, went to the Police Post Daulatpur to lodge daily diary report No. 18 (Ext.PA). In the said report, he stated that at about 7.00 a.m. PW-6 Dev Raj of the same village came to his house and informed him that Ashwani Kumar alias Pinku their co-villager had been killed. They both went to the house of Ashwani Kumar. On reaching there, they found Ashwani Kumar lying in a pool of blood on a cot in the room of his house. A number of cut injuries were found on the head of the deceased. PW-9 immediately rushed to the Police Post on his Scooter to lodge the report. Appellant Raj Kumar, the brother of deceased also reached at the Police Post who disclosed to PW-7 that untoward incident was done by him as he had murdered his brother with a Darat, which was concealed by him. On the basis of daily diary report (Ext.PA) First Information Report (Ext. PW-11 / A) was recorded by PW-11 H.C. Yog Raj, at Police Station Gagret. PW-14 ASI Prem Chand immediately proceeded to the spot. In the meantime, PW-13 Kashmir Singh, Station House Officer/Inspector, Police Station Gagret alongwith other staff members reached at Police Post Daulatpur. He inspected the daily diary report Ext.PA. PW-13 arrested the appellant. During interrogation the appellant made a disclosure statement (Ext.PW-5/A) in the presence of PW-5 Smt. Ram Kumari Pradhan and PW-7 Balbir Singh Ward Member of Gram Panchayat that he had concealed a Darat in the room of his house and could get the same recovered. The Investigating Officer took into possession blood stained bed-sheet Ext.P-1, pillow cover Ext. P-2 and Khesi Ext.P-3 found on the cot of the deceased. The Investigating Officer took into possession blood stained bed-sheet Ext.P-1, pillow cover Ext. P-2 and Khesi Ext.P-3 found on the cot of the deceased. Seizure Memo Ext. PC was prepared and all the recovered articles were sealed in a packet. Inquest report Ext. PB was prepared. Appellant produced his pyazama Ext. P-6 and shirt Ext.P-7, which were found blood stained from the room of his house and the same were also taken into possession vide recovery memo. Ext. PW-5/C. Appellant recovered Darat P-5 kept by him under a container of grains from his room, which was taken into possession by the police. The dead-body of the deceased was sent for post-mortem to District Hospital, Una. PW-13 recorded the statements of some witnesses. Statements of PW-4 Naresh Kumar and his wife PW-9 Smt. Neelam Kumari under Section 161 Cr.P.C. were recorded on 3.10.1998. Seized property was deposited by PW-13 on 1.10.1998 with PW-11 H.C. Yog Raj, Police Station Gagret, for safe custody. 4. After completion of the investigation and receipt of the chemical examiner report Ext. PW13/G, charge-sheet was laid against the appellant. Appellant was tried for offence under Section 302 I.P.C. by the Additional Sessions Judge. The appellant pleaded not guilty to the charge and claimed to be tried. 5. The prosecution in support of its case examined as many as 14 witnesses. The appellant in his statement recorded under Section 313 Cr.P.C. denied all the allegations levelled against him by the prosecution. He stated that Pyazama Ext. P-6 and Shirt Ext. P-7 do not belong to him. He pleaded false implication in the case by his brother PW Naresh Kumar, PW Dev Raj and others in connivance with the police officials. There can be no doubt nor it is disputed that deceased Ashwani Kumar met with a homicidal death. PW-8 Dr. V.K. Raizada, Medical Officer, District Hospital, Una, on 1.10.1998 at about 4.40 p.m., conducted the post mortem I on the dead body. He found the following injuries on the person of Ashwani Kumar : 1. A clean L.W. 10 long from midline extending up to the back of right ear cutting through right external ear being a wide in the middle, muscles, brain tissue and other soft tissues are visible. 2. A clean L.W. over right parietal region scalp 5" x 1", with clean laceration of underlying bone with brain matter oozing out. 3. A clean L.W. 10 long from midline extending up to the back of right ear cutting through right external ear being a wide in the middle, muscles, brain tissue and other soft tissues are visible. 2. A clean L.W. over right parietal region scalp 5" x 1", with clean laceration of underlying bone with brain matter oozing out. 3. A clean L.W. over right parietal region scalp 3" long and 1/2 inches wide cutting the underlying skull bone. 4. A clean L.W. over right occipital region of scalp 5" long and 1" wide, the clean edges of cut bone of scalp seen through the wound. 5. A clean L.W. over the occipital region, one inch away from above wound being 4" long and 1/2 inch wide in the middle, the underlying skull bone has clean cut wound. 6. A C.L.W. over right side fact 5" x 1" cutting underlying bone on right face extending from right eye to right cheek. 7. A lacerated wound over right side of forehead 3" x 1", the frontal bone cut and brain matter seen through the bone. 8. A C.L.W. over right face from nose to cheek 3" x 1/2" with cutting of maxilla. 9. A C.L.W. 2" x 1/2" from right angle mouth to lower jaw, teeth seen from the wound. 10. A C.L.W. over right cheek 1 long x 1 cm wide and underlying muscles were visible. 11. A C.L.W. over right side of forehead being 3" x 1/2" and the underlying frontal bone was also cut. Deformity of right side of face due fractures of frontal bone, maxillary bone, lower jaw and dislocation of right pre molar teeth. 6. The skull of the deceased was having multiple clear margins wounds corresponding to the wounds described already and the underlying duramater with brain were also having lacerated wounds. In the opinion of the Doctor, death of Ashwani Kumar was caused due to injuries and lacerations to the brain, multiple fractures due to lacerated wounds of skull and face with severe haemorrhage and irreversible shock. All the injuries were found ante-mortem in nature and were sufficient to cause death of the deceased. The probable time between death and injuries was immediate and between death and post mortem within 24 hours. According to Dr. V.K. Raizada, all the above said injuries were possible by Darat Ext. P-5 if sharp portion thereof was used. All the injuries were found ante-mortem in nature and were sufficient to cause death of the deceased. The probable time between death and injuries was immediate and between death and post mortem within 24 hours. According to Dr. V.K. Raizada, all the above said injuries were possible by Darat Ext. P-5 if sharp portion thereof was used. Injuries No. 1 to 5 and 7 were individually sufficient to cause death as per the version of Dr. Raizada. Dr. Raizada issued post mortem report Ext. PW8/A. 7. There is no direct evidence. The prosecution case rests on circumstantial evidence only. The circumstances as unfolded during trial and reflected in the judgment of the Additional Sessions Judge are following :— (1) that the relationship between the deceased and the accused was not cordial due to the dispute on account of the possession of the room; (2) that on the evening of 30.9.1998 there was a scuffle between the accused and the deceased; (3) that the accused had made an extra judicial confession of his guilt on the morning of 1.10.1998 in presence of Balbir Singh; (4) that the accused got recovered the blood stained Darat from his possession under Section 27 of the Indian Evidence Act; (5) that he had handed over to the police his blood stained Pyazama and shirt to the police; (6) that the accused was seen with the Darat coming out of the room of the deceased in the early morning of 1.10.1998 by his brother Naresh Kumar and Smt. Neelam Kumari; (7) that the blood group on the Darat, Chadar and Pyazama of the accused was opined to be the same i.e. Group B by the chemical analyst; and (8) that the shirt of the accused, the khessi and pillow cover of the deceased had the blood stains of human being. 8. The learned trial Court on appreciation and analysis of the evidence and in the light of the submissions made by the learned Counsel for the parties concluded that the prosecution has been able to prove Circumstances No. 1, 2, 5, 7 and 8 relied upon by it to hold the appellant guilty of the murder of his brother Ashwani Kumar. But circumstances No. 3,4 and 6 were not found having been proved against the appellant beyond reasonable doubt. The appellant was accordingly convicted and sentenced as aforesaid. But circumstances No. 3,4 and 6 were not found having been proved against the appellant beyond reasonable doubt. The appellant was accordingly convicted and sentenced as aforesaid. Appellant filed this appeal from Model Central Jail, Nahan. This Court appointed Dr. N.K. Thakur, Advocate as Legal Aid Counsel at the request of the appellant. 9. We have heard learned Counsel for the appellant and the learned Additional Advocate General for the State. Mr. N.K. Thakur, Advocate, urged that the prosecution has failed to establish its case to sustain the order of conviction; the prosecution case depends upon the circumstantial evidence only and the circumstances are not established so as to point out only to the accused that he is guilty According to him, the chain of circumstances is not complete and there are several doubts and discrepancies in the prosecution case. 10. Per contra, the learned Additional Advocate General for the respondent - State made submissions supporting the impugned judgment on the circumstances proved against the appellant. He submitted that the learned trial Court on a proper and careful assessment and appreciation of evidence has found the appellant guilty of the offence under Section 3021.P.C., and this Court under the circumstances may not upset the impugned judgment. He next contended that the findings recorded by the learned trial Court against circumstances No. 3,4 and 6 are improper and unsustainable as the prosecution has also proved those circumstances against the accused beyond reasonable doubt and to that extent, the findings arrived at and conclusion drawn deserves to be set aside. In order to appreciate the rival contentions of the learned Counsel, we propose to reappraise and reassess the evidence appearing on record. It is well settled by the Supreme Court in catena of judgments that in cases in which the evidence is purely on a circumstantial nature, the facts and circumstances from which the conclusion of guilt is to be drawn must be fully established beyond any reasonable doubt, and the facts and circumstances should not only be consistent with the guilt of the accused, but they must be such in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis, consistent with his innocence. 11. 11. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621, it is laid down that where the case depends upon the conclusion drawn from circumstances and cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt. 12. In C. Chenga Reddy v. State of A.P., (1996) 19 SCC 193, their Lordships observed thus : "In case based on circumstantial evidence, the settled law is that circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence......" Similar view has been taken by the Apex Court in Padala Veera Reddy v. State of Andhra Pradesh and others, AIR 1990 SC 79, and in State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840. We do no consider it necessary to make reference to the other judgments of the Supreme Court on the settled proposition of law to unnecessarily burden this judgment. Circumstance No. (i) : 13. In support of this circumstance, the prosecution has relied upon the testimony of PW-4 Naresh Kumar, the elder brother of the appellant and younger brother of the deceased. He deposed that the accused alongwith six other members of his family was residing in one room of the joint family house, whereas the other room was occupied by him alongwith his three family members and deceased who was unmarried at the time of his death. There is one verandah which was being jointly used by all the three brothers and their family members. There is one verandah which was being jointly used by all the three brothers and their family members. It is the evidence of this witness that he alongwith his family and deceased had experienced difficulty in residing in one room therefore, a portion of their joint land adjoining to their joint house was given to the accused to construct his separate room for which funds were provided to him by the Gram Panchayat under I.R.D.P. category The accused after constructing the new room refused to hand over the possession of the old room to him and the deceased which was being occupied by him and he is still occupying the said room. He stated that as the accused violated the oral terms of the settlement, the relation of the accused and his family members with him and his family members as well as with the deceased became not cordial. The testimony of this witness to that extent finds corroboration from the testimony of his wife PW-9 Smt. Neelam Kumari and PW-5 Smt. Ram Kumari, Pradhan of Gram Panchayat Bhadorkali who provided financial assistance to the accused under I.R.D.P. category for the construction of the new room. PW-2 Jagir Singh, a resident of the village of the accused, PW-4, PW-9 and deceased deposed that the accused in his presence promised to vacate the old room on the completion of the construction of his new room but he did not do so and as a result thereof accused used to pick up quarrel with PW-4 and the deceased in his presence on many occasions. The learned trial Court has properly appreciated the evidence of these witnesses and in the teeth of the testimony of PWs 2, 4, 5 and 9 discussed hereinabove, Circumstance No. 1 has been proved by the prosecution that the relation of the accused with his two brothers, namely, PW-4 Naresh Kurnar and deceased Ashwani Kumar before his death was not cordial on account of the accused having refused to vacate the old room, which was promised by him to be handed over to PW-4 and the deceased after shifting to the newly constructed room. PW-4 alongwith his wife and children used to sleep in open verandah of the joint house being occupied by him alongwith the accused and the deceased. Circumstance No. 2: 14. PW-4 alongwith his wife and children used to sleep in open verandah of the joint house being occupied by him alongwith the accused and the deceased. Circumstance No. 2: 14. It is the evidence of PW-4 Naresh Kumar and PW-9 his wife Neelam Kumari that on the evening of 30.9.1998 the deceased wanted to go to Daulatpur to watch Ram Lila on a bicycle jointly owned by all the three brothers, but the accused did not permit the deceased to take the said bicycle. The deceased forcibly brought out the bicycle lying on the backside of the room of the accused, but the accused again took the bicycle to the backside of his room which was again brought back to the front side of the house by the deceased. The accused again objected to the taking of the bicycle by the deceased and as a result thereof, minor scuffle ensued between the accused and the deceased. The accused then gave a slap on the face of the deceased. PW-4 intervened and promised to buy a new bicycle for the deceased. The deceased took meals at about 7.00 or 8.00 p.m. and then went to Daulatpur. The testimony of PW-4 and PW-9 who were the only witnesses on the spot at the relevant time has not been shattered by the defence and there is no good reason to disbelieve them on this aspect of the matter. This circumstance too proves that the relationship between the accused and his younger brother deceased were not cordial. The testimony of PW-4 and PW-9 inspires confidence and has been rightly accepted by the learned trial Court to hold that the prosecution has been able to prove the second circumstance against the accused. Circumstance No. 3: 15. In support of this circumstance, the prosecution has relied upon the evidence of PW-7 Balbir Singh. Ward Panch and PW-14 ASI Prem Chand. PW-6 Dev Raj in the early morning of 1.10.1998 was informed by PW-4 that his brother Ashwani Kumar had been murdered. Thereafter, PW~4 went to the house of PW-9 and informed the latter that Ashwani Kumar @ Pinku was murdered in his house. Both these witnesses came to the house of the deceased and found his dead body lying on a cot in a pool of blood. PW~ 7 arranged a scooter and went straightway to Police Post Daulatpur. Thereafter, PW~4 went to the house of PW-9 and informed the latter that Ashwani Kumar @ Pinku was murdered in his house. Both these witnesses came to the house of the deceased and found his dead body lying on a cot in a pool of blood. PW~ 7 arranged a scooter and went straightway to Police Post Daulatpur. It is the evidence of PW-7 that when he reached at the bus stand Daulatpur, near the Police Post, he saw the accused there. He enquired from the accused as to why he was loitering there when his brother Ashwani Kumar was murdered, and the accused replied that he had committed Tutha Kaam (wrong thing) and when PW-7 again asked the accused what was the Tutha Kaam done by him, the accused disclosed that he has cut his brother to death. PW-7 again inquired from the accused as to with what weapon he had murdered his brother, the accused replied that Darat was used by him. Thereafter, PW-7 took the accused to the adjoining Police Post where he (PW-7) lodged daily diary report Ext. PA and handed over the accused to the police. He deposed that thereafter he went to call PW-5 Smt Ram Kumari, Pradhan and both of them went to the house of the accused where the police had already arrived and the accused was in their custody. The evidence of this witness is not found reliable and acceptable by the learned trial Court that alleged confessional statement was made to him by the accused at bus stand Daulatpur. This witness has not stated in his statement Ext. PA made by him to the police at Police Post Daulatpur that the accused had met him near the bus stand adjoining to the Police Post and made the extra judicial confession to him. It is the evidence of PW-14 ASI Prem Chand that when PW-7 had come to Police Post Daulatpur, the accused also came there and report Ext. PA was recorded in his presence by M.C. Sukhdev Singh (not examined). In the cross-examination PW-14 has categorically admitted that complainant PW-7 and the accused had come to the Police Post together and PW-7 had a talk with the accused in the Police Post. On perusal of report Ext. PA was recorded in his presence by M.C. Sukhdev Singh (not examined). In the cross-examination PW-14 has categorically admitted that complainant PW-7 and the accused had come to the Police Post together and PW-7 had a talk with the accused in the Police Post. On perusal of report Ext. PA it finds mentioned in portion A to A thereof that when PW-7 reached the Police Post the accused also reached there in the presence of 6-7 police officials. Thus, it is evident that PW-7 for the first time stated in the examination-in-chief in the Court that accused had made an extra judicial confession to him at bus stand just outside the Police Post. But he did not get this vital admission of the accused recorded in report Ext. PA. It finds recorded in Ext. PA that the accused told PW-y 7 in the Police Post that he had cut his brother Pinku with Darat and then concealed the said Darat. The report Ext. PA was recorded by M.C. Sukhdev Singh in the Police Chowki in the presence of 6-7 other police officials and the prosecution was required to rule out the presence of police officials to make the extra judicial confessional statement of the accused admissible in law. On the scrutiny of evidence of PW-7 we are satisfied that no voluntarily extra judicial confession was made by the accused to him at the bus stand near the Police Post Daulatpur and if any suoh statement was made by him in the presence of the police officials, the said extra judicial confession is not admissible in law. The learned Additional Advocate General contended that the evidence of PW-7 has to be accepted as he is not found to be an inimical witness towards the accused to implicate him in a false case. The learned Additional Advocate General contended that the evidence of PW-7 has to be accepted as he is not found to be an inimical witness towards the accused to implicate him in a false case. In support of his submission that the evidence furnished by extra judicial confession made by accused to FW-7 cannot be termed to be a tainted evidence, reliance was placed in the judgments of Supreme Court in Maghar Singh v. State of Punjab, AIR 1975 Supreme Court 1320, Darshan Lai v. State of Jammu and Kashmir, AIR 1975 Supreme Court 898, Thimtna v. State of Mysore, AIR 1971 Supreme Court 1871, Kansa Behera v. State of Orissa, AIR 1987 Supreme Court 1507, State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 Supreme Court 1588 and Ram KJiilari v. State of Rajasthan, (1999) 9 Supreme Court Cases 89. 16. One can have possibly no quarrel with the established preposition of law in the aforesaid judgments of the Supreme Court that if the Court placed reliance on the witness before whom the confession is made and it is satisfied that confession was voluntarily then in such a case confession can be founded of such evidence alone, but as noticed above, the testimony of PW-7 that the accused made extra judicial confession to him at the bus stand near the Police Post is not found satisfactory and reliable. If such confession was made by the accused co PW-7 prior to lodging of report Ext.PA, he being a Ward Panch was under legal duty to have got the said fact recorded in the report made by him to the police officials in the Police Post Daulatpur. Thus, the prosecution has failed to prove Circumstance No. 3 against the accused beyond reasonable doubt. We find no good reason to differ with the reasonings and findings recorded by the learned trial Court dealing with and considering this circumstance. Circumstance No, 4 : 17. In support of this circumstance, prosecution has relied upon the disclosure statement Ext. PW-5/A allegedly made by the accused in the police custody under Section 27 of the Indian Evidence Act in the presence of PW-5 Smt Ram Kumari and PW-7 Balbir Singh. PW-13 Investigation Officer was Station House Officer in Police Station Gagret during the relevant time. In support of this circumstance, prosecution has relied upon the disclosure statement Ext. PW-5/A allegedly made by the accused in the police custody under Section 27 of the Indian Evidence Act in the presence of PW-5 Smt Ram Kumari and PW-7 Balbir Singh. PW-13 Investigation Officer was Station House Officer in Police Station Gagret during the relevant time. On the morning of 1.10.1998 he received information through V.H.F. Set fron Police Post Daulatpur that one Raj Kumar had committed murder at a place known Bhadorkali. On getting the said information he reached the Police Post alongwith other police officials and noticed the accused, PW-5 Pradhan and PW-7 Ward Panch standing in front of the Police Post. He went inside the Police Post and inspected daily diary report Ext. PA, whereas ASI Incharge of the Police Post had already left to the place of occurrence. He arrested the accused at the Police Post and interrogated him. It is his evidence that the accused made a disclosure statement Ext. PW-5/A in the presence of PWs 5 and 7 that he had concealed Darat in the room of his house and could get the same recovered. He alongwith the accused and witnesses rent to village Bhadorkali and on reaching there, he inspected the place of occurrence. Photographs of the dead body of the deceased were taken by PW-14 A.S.I. He recovered blood stained bed sheet Ext. P-l, pillow cover Ext. P-2 and khessi Ext. P-3 from the bed of the deceased. The accused went inside his room and got recovered blood stained Darat Ext. P-5 which was concealed by him behind the container of grains. 18. PW-5 Pradhan of Gram Panchayat Bhadorkali categorically stated that she had not gone to the police post Daulatpur and she met the Police Party at the scene of occurrence. PW-4 has also said that the accused had not gone to Police Post on the day of occurrence. The version of PW-5 is that on getting information from PW-7 about the murder of Ashwani Kumar, she went straightaway to the house of the deceased where the police had already arrived. She testified that disclosure statement Ext. PW-4 has also said that the accused had not gone to Police Post on the day of occurrence. The version of PW-5 is that on getting information from PW-7 about the murder of Ashwani Kumar, she went straightaway to the house of the deceased where the police had already arrived. She testified that disclosure statement Ext. PW-5/A was recorded by PW-13 in her as well as in the presence of PW-7 at the spot when the accused was in the custody of police and pursuant to the said statement the accused went inside the room and brought out Darat, which was kept behind the container of grains. Darat was stained with blood. Similar statement has been made by PW-7. He has also stated that no disclosure statement was made by the accused in his presence in Police Post Daulatpur as he after lodging the report Ext. PA left the Police Post. In the face of the vital contradictions coming on record in the versions of PW-13 and independent witnesses PW-5 and PW-7, the prosecution has failed to prove the location of the place where the disclosure statement was made by the accused. The disclosure statement of the accused Ext. PW-5/A that Darat with which I have committed murder has been kept concealed by me in my residential room... " is not admissible under law and is hit by Section 25 of the Evidence Act and, therefore, the disclosure statement to that extent has to be discarded and kept out of consideration. In recovery memo Ext. PW-5/B prepared by the Investigation Officer, it finds mentioned that accused led the police party to his residential house and got the weapon of offence i.e. Darat recovered from the house which he had kept concealed under a drum of grains placed in the room of his house by pointing of the same and the blade of the Darat was stained with blood. It is the evidence of PW-5 in the cross-examination that the accused and his family members, PW-5 and his family alongwith deceased used to reside in two rooms of the house. As per her version the disclosure statement Ext. PW-5/A was made by the accused and pursuant thereto Darat was brought by him and handed over to PW-13 the Investigation Officer, she alongwith PW-7 and other police officials was sitting in the courtyard. As per her version the disclosure statement Ext. PW-5/A was made by the accused and pursuant thereto Darat was brought by him and handed over to PW-13 the Investigation Officer, she alongwith PW-7 and other police officials was sitting in the courtyard. She admitted that there was no special identification mark of Darat Ext. P-5 to prove that it belongs to the accused and such like Darats are commonly available in the houses of the village people. PW-7 stated that the police and the accused went inside the room and brought out the Darat kept behind the container of the grains, which was blood stained. The evidence of both these witnesses are contradictory to prove whether the accused recovered Darat from his house concealed under the container of the grains in the presence of police officials or he produced the said Darat on the asking of PW-13 and other police officials who were present on the spot. The testimony of PW-5 and PW-7 and PW-13 that the accused recovered Darat from underneath the container of grains from the room cannot be accepted as they have categorically stated that when Darat was brought out by the accused which was taken into possession by PW-13, at that time they were sitting in the courtyard. Admittedly, they had not gone inside the room to verify as to whether Darat was really concealed by the accused behind the container of grains and further whether it was recovered from the room being in possession of the accused and his family members. In such circumstances, it cannot be held that Darat was concealed by the accused underneath the container of grains and recovered from there by him. The prosecution has not got Darat Ext.P-5 identified from PW-4 Naresh Kumar belonging to the accused. In the face of the evidence of PW-5 and PW-7, we are of the view that the weapon of offence taken into possession by the Investigating Officer was not recovered pursuant to disclosure statement Ext.PW-5/ A allegedly made by the accused to PW-13. In the circumstances, the finding of the learned trial Court that inspite of the contradictions in the statements of PW-5, PW-7 and PW-13, Darat Ext. In the circumstances, the finding of the learned trial Court that inspite of the contradictions in the statements of PW-5, PW-7 and PW-13, Darat Ext. P-5 containing blood stains was recovered by the police at the instance of the accused from his room concealed by him underneath the container of the grains as projected by the prosecution is wholly untenable and unsustainable. Thus, the prosecution has failed to prove Circumstance No. 4 against the accused beyond reasonable doubt. Circumstance No. 5: In support of this circumstance, the prosecution has relied upon the testimony of PW-5 and PW-13 Investigation Officer. PW-5 deposed that in her presence and in the presence of Smt. Kamla Devi, Ward Panch (not examined), the accused produced blood stained Pyazama Ext. P-6 and Shirt Ext. P-7 to PW-13, which were taken into possession vide memo Ext. PW-5/C. PW-5 has admitted in her cross-examination that there was no special identification mark on the clothes produced by the appellant- The appellant in reply to Question No. 29 of his statement under Section 313 Cr.P.C. replied that Pyazama Ext. P-6 and shirt Ext. P-7 do not belong to him. The prosecution has not proved by leading satisfactory, cogent and convincing evidence that those clothes belong to the appellant and no particular identification mark was found on Pyazama Ext. P-6 and shirt Ext. P-7 to prove that he was wearing those clothes at the time of commission of the crime. PW-4 brother of the deceased and his wife PW-9 have not identified those clothes belonging to the appellant. Both these persons were the best witnesses to prove that the accused was wearing Pyazama Ext. P-6 and Shirt Ext.P-7 on the day of occurrence or prior to that day. In the face of weak and unsatisfactory evidence on record, we hold that the prosecution has failed to prove that clothes Ext. P-6 and shirt Ext. P-7 belong to the appellant which were produced by him at the time of the occurrence. The reasoning of the learned trial Court on Circumstance No. 5, in our view is not sustainable and tenable. Circumstance No. 6 : 19. The learned trial Court has found this circumstance not having been proved by the prosecution. To prove this circumstance, the prosecution has examined PW-4 Naresh Kumar and his wife PW-9 Smt. Neelam Kumari. The reasoning of the learned trial Court on Circumstance No. 5, in our view is not sustainable and tenable. Circumstance No. 6 : 19. The learned trial Court has found this circumstance not having been proved by the prosecution. To prove this circumstance, the prosecution has examined PW-4 Naresh Kumar and his wife PW-9 Smt. Neelam Kumari. On reappraisal and scrutiny of their testimony, we find that their versions are contradictory to each other. PW-4 deposed that on the morning of 1.10.1998, he saw the appellant trying to make the sharp edged portion of Darat as blunt and he did not notice the appellant in the early morning of the day of occurrence coming out of the room of the deceased. He was declared hostile. In his cross-examination conducted by the learned Public Prosecutor, he admitted that he had seen the appellant emerging out of the room of the deceased at about 4.00 a.m. but again in the cross examination conducted by the defence, he stated that he had seen the accused emerging out of the room at about 7.00 a.m. He also admitted that he has not disclosed that the appellant was trying to blunt the sharp edged side of Darat to anyone including the police and he has no explanation to offer on this count. 20. PW-9 deposed that on the day of occurrence at about 7.00 a.m. she was woken up by her husband. Her husband then went inside the room where he noticed the deceased lying in a pool of blood. She raised cry and advised her husband to inform the co-villagers. She also stated that when she woke up in the morning, she saw the appellant sharpening "Darati". She has not seen the appellant coming out of the room of the deceased armed with Darat. Darat Ext. P-5, alleged weapon of offence has not been shown to PW-9 in the Court to be the same which according to her was in the hand of the appellant who tried to make the sharp edged side thereof as blunt. Thus, in the teeth of the contradictory versions of both PW-4 and PW-9, the learned trial Court has rightly concluded that the prosecution has failed to establish that the appellant was seen by them armed with Darat coming out the room of the deceased in the early morning of 1.10.1998. Thus, in the teeth of the contradictory versions of both PW-4 and PW-9, the learned trial Court has rightly concluded that the prosecution has failed to establish that the appellant was seen by them armed with Darat coming out the room of the deceased in the early morning of 1.10.1998. We find no good reason to interfere with the finding recorded on this circumstance by the learned trial Court. Circumstances No. 7 & 8: 21. Both these circumstances were taken up and decided together by the leaned trial Court in favour of the prosecution and against the appellant. It is not in dispute that the deceased was found dead in the room on 1.10.1998. PW-13 reached on the spot and taken into possession the blood stained Chadder Ext. P-l, pillow cover Ext. P-2 and khessi Ext. P»3, which were found on the cot where the deceased was lying dead. All these clothes were taken into possession by the Investigation Officer in the presence of PW-3 Om Prakash, Up-Pradhan and PW-5 Smlt Ram Kumari, Pradhan of the Gram Panchayat. The Investigation Officer had also taken into possession Pyazama, Shirt and Darat containing stains of blood as stated in the earlier part of the judgment. Three parcels were deposited by PW-13 with PW-11 MHC Yog Raj, Police Station Gagret. On 23.10.1998 PW-11 handed over those parcels to PW-12 HHC Jatinder Singh who deposited them in Forensic Science Laboratory, Junga on the same day. 22. As per the report of the Director State Forensic Science Laboratory Ext. PW13/G, human blood of Group-B was found on Darat, bed-sheet and Pyazama. Human blood was also found on Pillow Cover, Khessi and Shirt but no conclusion could be drawn by the Analyst regarding blood group on those articles. The learned trial Court has recorded finding that Darat Ext. P-5, Pyazama Ext. P-6 handed over by the appellant to the police contained the same blood group which was found on bed-sheet Ext. P-l over which deceased was lying dead. Pyazama Ext. P-6 and Shirt Ext. P-7 do not belong to the deceased because at the time of his death he was wearing white pant and brown and white check Shirt and those clothes were found on his body by PW-14 ASI when he took photographs of the dead body of the deceased as well as by PW-8 Dr. Pyazama Ext. P-6 and Shirt Ext. P-7 do not belong to the deceased because at the time of his death he was wearing white pant and brown and white check Shirt and those clothes were found on his body by PW-14 ASI when he took photographs of the dead body of the deceased as well as by PW-8 Dr. Raizada at the time of post mortem on the dead body of the deceased. It has come in the evidence of PW-3 Om Prakash, Vice President of the Gram Panchayat that the appellant had not handed over anything in his presence to the police. In his cross-examination conducted by the Public Prosecutor after declaring him hostile, a suggestion that Darat Ext. P-5 was handed over by the appellant to the police in his presence has been emphatically denied by him. He admitted in the cross-examination of the defence that he had seen Darat Ext. P-5 in possession of the police when he reached at the house of the appellant. It has come in the cross-examination of PW-9 Smt. Neelam Kumari that the walls of room and the clothes which were found hanging on the pegs attached to the walls of the room where the dead body of the deceased was lying were all smeared with stains of blood. The Investigating Officer had not taken those articles and blood stained clothes into possession to ascertain the blood group of the deceased and to verify whether Pyazama Ext.P-6 and Shirt Ext. P-7 belonged to the deceased or not. In the absence of any positive, reliable and convincing evidence coming on record, it cannot be said that Pyazama Ext. P-6 and Shirt Ext. P-7 smeared with blood belong to the appellant and not to the deceased. The appellants specific plea was that Pyazama, Shirt and Darat do not belong to him. If the evidence of PWs 4 and 9 is to be believed that on the morning of 1.10.1998 they saw the appellant trying to make the sharp-edged side of Darat as blunt, then it was not possible that stains of blood would still exist on Darat Ext. P-5, which was sent to the Chemical Analyst, on which human blood of Group-B was found. As regards the recovery of Pyazama Ext. P-6 and Darat Ext. P-5, which was sent to the Chemical Analyst, on which human blood of Group-B was found. As regards the recovery of Pyazama Ext. P-6 and Darat Ext. P-5 which according to the report of the Forensic Science Analyst were stained with human blood of Group-B, there is no evidence in the report of the Chemical Analyst that the blood of the deceased was of Group B. In the evidence of Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. The report of the Chemical Analyst shows that no conclusion could be drawn regarding blood group found on pillow cover Ext. P-2, khessi Ext. P-3 and shirt Ext. P-7. In this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn that human blood of Group-B found on Darat, and Pyazama is connected with the blood group of the deceased. The Investigating Officer has also not got verified the blood group of the accused. 23. PW-2 Jagir Singh who was marginal witness of inquest report Ext. PB has admitted in the cross-examination of the defence that he did not disclose to the police at the time of recording of his statement under Section 161 Cr.P.C. that there was a discord in between the appellant and the deceased on account of the occupation of the room. He stated that he has signed inquest report Ext. PB at the instance of the policeman who obtained his signature thereon by saying that the dead body of the deceased was to be taken to the hospital for post mortem examination. 24. PW-4 and PW-9 deposed that the deceased on return to his house at about 12 midnight took meal second time and thereafter slept in the room after playing tape recorder and switching on the light. They alongwith their children slept in the common verandah of the house. At about 7.00 a.m. on 1.10.1998 PW-4 saw deceased lying on the cot with injuries on his neck and head. PW-4 has admitted in the cross-examination that the appellant and the deceased were in possession of one room each in the ancestral house and he alongwith his family members used to sleep in the verandah. At about 7.00 a.m. on 1.10.1998 PW-4 saw deceased lying on the cot with injuries on his neck and head. PW-4 has admitted in the cross-examination that the appellant and the deceased were in possession of one room each in the ancestral house and he alongwith his family members used to sleep in the verandah. He also admitted the suggestion of the defence that in fact he was in need of a separate room and he used to insist upon the deceased to vacate the room which he was occupying so that he alongwith his family members could stay in that room but the deceased refused to vacate the same. This witness has also admitted that the appellant was not vacating the room on the pretext that it was not possible for him to reside in a single room as his family is consisting of himself, his wife and 5 grown up children. It has also come in the evidence of PWs 4 and 9 that the deceased used to work as Tractor driver with some person and used to keep his entire earning with himself. A suggestion put to PW-4 and PW-9 that the deceased being unmarried person was having illicit relation with PW-9 (his Bhabi) has been categorically denied by both of them. It has come in the evidence of PW-4 that he did not raise any hue and cry on seeing the blood stained dead body of his brother. PW-4 and PW-9 have not disclosed to PW-6 Dev Raj who was the first person to reach at the place of occurrence or any other co-villager who had gathered at the spot before the arrival of the Police that it was the appellant who had murdered the deceased. PW-9 stated that during the intervening n/ght of 30.9.1998 and 1.10.1998 (the day of occurrence) there was shower of storm followed by heavy rains in their village. She has admitted in her cross-examination that Darat Ext. P-5 is used for lopping branches of trees and cutting hushes and such like of Darat is commonly available in every house including her house in the village. It has come in her cross-examination that though she was sleeping alongwith her husband and children in the verandah of her house, yet their domestic articles and clothes were kept in the room in which the deceased was sleeping. It has come in her cross-examination that though she was sleeping alongwith her husband and children in the verandah of her house, yet their domestic articles and clothes were kept in the room in which the deceased was sleeping. PW-4 and PW-9 had not heard any sound from the room where the deceased was sleeping and it is the evidence of PW-9 that the door of the room of the deceased was not bolted from inside. PW-4 and PW-9, both have admitted in the cross-examination that the deceased was not bearing good character and he was having some affairs with the daughter of a Barber. The conduct of both these witnesses is found to be very unnatural. After seeing the dead body of the deceased, they had not immediately cared to inform the Ward Panch or the Pradhan of the Gram Panchayat or any other relative or co-villager about the murder of the deceased. The testimony of PW-9 is that when she woke up at about 7.00 a.m. on 1.10.1998, she alongwith her husband had gone out to milk the cow and thereafter they went inside the room where the deceased was found lying dead. It appears from the record that the investigation of this case has not been fairly conducted by PW-13. He has not recorded the statements of PW-4 and PW-9 on the day of occurrence under Section 161 Cr.P.C. Their statements were recorded only on 3.10.1998. A self invented explanation of PW-13 the Investigating Officer before the learned trial Court was that as PW-4 and PW-9 both were under shock due to the death of Ashwani Kumar, therefore, he did not record their statements on the day of occurrence of the crime. This voluntary explanation of the Investigating Officer cannot be accepted as gospel truth. Both PW-4 and PW-9 the material witnesses have not whispered a word in their depositions that on the day of crime, they were under mental shock and could not make their statements to the Investigating Officer. In the circumstances the prosecution has failed to prove Circumstances No. 7 and 8 against the appellant beyond reasonable doubt. The findings to the contrary recorded by the learned trial Court cannot be sustained as it has failed to appreciate and consider the evidence in its proper perspective. In the circumstances the prosecution has failed to prove Circumstances No. 7 and 8 against the appellant beyond reasonable doubt. The findings to the contrary recorded by the learned trial Court cannot be sustained as it has failed to appreciate and consider the evidence in its proper perspective. The appellant cannot be held guilty on suspicion howsoever strong it may be, simply because his relation with the deceased was not cordial because of some small dispute in regard to the possession of the room and as well as a minor scuffle ensued between the appellant and the deceased on the evening of 30.9.1998 on the issue of Bicycle as alleged by the prosecution. On reappraisal and scrutiny of the entire evidence on record as discussed hereinabove, it cannot be said that it was the appellant and none else who committed the murder of deceased Ashwani Kumar @ Pinku on the day of occurrence. The evidence relied upon by the prosecution is reasonably capable of drawing two inferences and the one in favour of the appellant has to be accepted. The prosecution has failed to complete the chain of the above said circumstances to hold the appellant guilty of the offence for which he was charged with. The circumstances from which the conclusion of the guilt of the appellant is to be inferred, are not of conclusive nature and consistent only with the hypothesis of his guilt and the circumstances relied upon by the prosecution in the present case and accepted by the learned trial Court cumulatively taken together are not sufficient to conclusively establish guilt of the appellant. 25. From the evidence coming on record, the prosecution has not been able to bring home the offence against the appellant beyond reasonable doubt. In convicting and sentencing the appellant there has been complete misreading and mis-appreciation of the evidence by the learned trial Court. Emotional considerations may be there, but the same cannot take the place of proof. Therefore, the conviction of the appellant deserves to be set aside by giving him benefit of doubt. 26. As a result, the present appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the offence under Section 302 Indian Penal Code, The appellant, who is presently lodged in jail undergoing sentence, be set at liberty forthwith unless required in any other case. 26. As a result, the present appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the offence under Section 302 Indian Penal Code, The appellant, who is presently lodged in jail undergoing sentence, be set at liberty forthwith unless required in any other case. The amount of fine, if already deposited/paid, shall be refunded to the appellant forthwith. The case property shall be dealt with as per the orders/directions of the learned Trial Court. A copy of this judgment be sent to the appellant through Superintendent of Jail where the appellant is presently lodged. 27. We place on record our appreciation for the invaluable assistance rendered to us by Mr. N.K. Thakur, Advocate, Amicus Curiae. Appeal allowed.