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2005 DIGILAW 225 (HP)

NARESH KUMAR ALIAS PAPPU v. STATE OF H. P.

2005-07-07

LOKESHWAR SINGH PANTA, SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—Naresh Kumar is aggrieved by the judgment dated 28.3.2003 of the learned Additional Sessions Judge (1), Kangra at Dharamshala delivered in Sessions Case No. 4-P/2000, whereby he has been convicted of an offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-. 2. Facts that led to the trial and the conviction and sentence of the appellant may be summed up thus. Deceased Suman Thakur, aged about 19 or 20, lived in village Bhadun of Tehsil Palampur. She was a student of B.A. Part-II in Girls College, Palampur. Besides pursuing her studies in the College, she used to learn the skill of typing at a private typing centre at Palampur. She used to leave her village in the morning and return home around 4.30/ 5.00 p.m. in the evening, after attending the college and the typing school. Appellant Naresh Kumar is also resident of village Bhadun. He lived in the neighbourhood of the deceased. In the year 1999, the appellant had been studying in a school at Palampur. His age in that year was 17 years. On 13.9.1999, the deceased went to Palampur to attend the college and the typing school, as usual. She attended the college as also the typing school. However, she did not return home. Her father was employed at Pathankot, during those days. Her father was informed telephonically by her fathers younger brother about her having not on the aforesaid day. Her own brother and her fathers younger brother then started searching for her. When they got no clue, a report of her having gone missing was lodged at Police Station, Palampur, on the next following morning. The relatives and the other residents of the village kept searching for the deceased. On 14.9.1999, around 3.30 p.m. her dead-body was spotted in the bushes at a place known as Khilaroo. The place is at a distance of half a kilometer from the village of the deceased. 3. One Ram Parkash (PW 10), was among the persons, who spotted the dead-body in the bushes. He informed the police telephonically. On 14.9.1999, around 3.30 p.m. her dead-body was spotted in the bushes at a place known as Khilaroo. The place is at a distance of half a kilometer from the village of the deceased. 3. One Ram Parkash (PW 10), was among the persons, who spotted the dead-body in the bushes. He informed the police telephonically. The police reached the spot around 4.30 p.m. Nathu Ram, the elder brother of the father of the deceased was also informed, but he was on election duty on that day and so he reached a little late, i.e. at 6.00 p.m. The police recorded the statement of said Nathu Ram on the spot. The scene was got photographed. Various articles were found lying on and near the spot. Those included a purse, the books, a clip and a leather Juti (hand-made shoe) of the deceased. One V-shaped chappal of right foot, a silver chain and a bracelet were also found lying on the spot. All the aforesaid articles were taken into possession and made up into a parcel. Inquest was conducted and the prescribed forms were filled in. 4. The dead-body was sent to the hospital. A team of two doctors, namely PW 2 Dr. Suresh Sakayan, Professor and Head of Forensic Department and Dr. Nirdosh Gupta, conducted the post mortem. The following external injuries were noticed on the dead-body:— 1. Contusion with abrasion, left shoulders area and upper arm left area present 5x7 cms. Area. 2. Abraded area on nape of neck 3 cm x 2.5 cm. 3. Incised wounds 2.2. cm. x 1. cm spindle shaped with clean cut margines 2.5 cm from strunal notch in midline of neck. 4. Incised wounds 2.2. cm. x 1 cm spindle shaped with clean cut margin with 5.25 cm from injury No. 3 in the mid line of the neck above injury No. 3. 5. Incised wounds 2.2 x 1 cm spindle shaped with clean cut margins c cm away from injury No. 4 on left side. 6. Incised wound 2.2 cm x 1 cm spindle shaped with clean cut edges 1.5 cm. to the left and above and lateral to injury No. 5. 7. 4 incised wounds of 2.2 x 1 cm. size spindle shaped with clean cut margin placed on the latal size of the neck in an area of 5.5 x 3.5 cm, lateral, downwards and outwards to injury No. 4. to the left and above and lateral to injury No. 5. 7. 4 incised wounds of 2.2 x 1 cm. size spindle shaped with clean cut margin placed on the latal size of the neck in an area of 5.5 x 3.5 cm, lateral, downwards and outwards to injury No. 4. 8. One incised wound spindle shaped with clean cut margin 2 cm x 0.75 cm above and lateral to umbilicus on right side 0.5 cm. away from umbilicus. 5. On dis-section of the dead-body, following injuries were noticed:— No. 1. Abdominal injury was through and through wall. There was no corresponding injury to the internal organs. Wound was clean. No blood present (post mortem injury). No.2. No reflecting the skin of neck contusion in submandibular region and supraclabicluber region right side. No. 3. Contusion in the middle of neck in relation to thyroid cartilage lower level. No. 4. Fracture of cricoid cartilage and contusion around. No. 5. Injury No. 3 as described earlier in external injury is muscle deep. No. 6. Injury No. 5 described earlier in external injury was entering into the larynx from left upper margin. Rest of the injuries were muscle deep only. 6. The doctors gave the opinion that the death had taken place due to throttling and stabbing into the larynx which caused asphyxia leading to the death. It was opined that the time lag between the death and the post mortem was 36 hours to 48 hours and between the injuries and the death it was a few minutes. 7. The police arrested the appellant and one more person, namely Ram Chand, who later on turned approver. The appellant, while in police custody, made a disclosure statement leading to the discovery of a knife, Ex. P-6. He also made a disclosure statement leading to the discovery of one T-shirt and a pair of jeans (trousers). At the time when the appellant was arrested, he had some injuries on his person. He was taken to the medical officer for his medico-legal examination. The doctor noticed the following injuries on his person:— 1. There was abrasion on left shin-multiple ranging from 2mm to 1 cm size. Covered by reddish brown crust. No tenderness. Movements normal. No crepitus. 2. There was contusion-linear extending from skin over dorsal 6th verteb. Laterally towards left scapula upto medial border of left scapula. 3 cm. below scapular spine 12 cm. There was abrasion on left shin-multiple ranging from 2mm to 1 cm size. Covered by reddish brown crust. No tenderness. Movements normal. No crepitus. 2. There was contusion-linear extending from skin over dorsal 6th verteb. Laterally towards left scapula upto medial border of left scapula. 3 cm. below scapular spine 12 cm. long and 2.5 cm. wide. Red in colour. 3. There was abrasion on the right hand, dorsum in between base of right index and middle finger. 0.5 cm. long. It was covered by brown crust. 4. There was an abrasion on right hand, dorsum in between base of right thumb and index finger, 0.5 cm. long, covered by brown crust. 5. There was an abrasion on the right forearm, dorsum 3 cm. from right snuff box. 1 cm long. Covered by brown crust. 6. Abrasion left thumb, dorsum at is interphalangeal joint. 0.5 cm. long. Covered by brown crust. 7. Abrasion left thumb, dorsum, over second interphalangeal covered with brown crust. 8. Injury No. 2 was opined to have been sustained in less than 24 hours and other injuries were opined to have been suffered within two to four days, by means of some blunt weapon. The medico-legal examination of the appellant was conducted on 15.9.1999 at 10.30 p.m. According to the prosecution, the injuries were sustained by the appellant at the hands of the deceased, when he was inflicting injuries on her person with the knife and throttling her. 9. As already noticed, Ram Chand, another person, who was arrested by the police, turned approver. Before that he made an application for grant of bail on 12.10.1999, copy Ex. DA. That application was allowed and he was released on bail, probably on 16.10.1999. Thereafter, the Chief Judicial Magistrate was approached by the police to tender pardon to said Ram Chand. That application was allowed on 18.11.1999. The statement of said Ram Chand as approver was recorded by the Additional Chief Judicial Magistrate, Palampur. DA. That application was allowed and he was released on bail, probably on 16.10.1999. Thereafter, the Chief Judicial Magistrate was approached by the police to tender pardon to said Ram Chand. That application was allowed on 18.11.1999. The statement of said Ram Chand as approver was recorded by the Additional Chief Judicial Magistrate, Palampur. In the said statement Ram Chand got recorded that on 13.9.1999, the appellant met him on the path near his house and approached him to accompany him and after they had walked a short distance, the appellant told him that when Suman Thakur would be returning from the college, he would stop and take her to the bushes and commit rape on her and would also afford him (the approver) an opportunity to have sexual intercourse with her. He further stated that the appellant asked him to stand guard on the road when he would take Suman Thakur to the bushes for raping her. He further got recorded in the statement that around 4.00 or 4.30 p.m., Suman Thakur came from college side and the appellant leaving him (the approver) behind, went towards Suman Thakur and stopped her and dragged her to the bushes. He further stated that after sometime he followed the appellant and Suman Thakur and saw that the girl was crying and then he (the approver) ran away from the spot and did not narrate the incident to anybody out of fear. At the same time he got recorded that when Sumans Taya inquired from him if he (the approver) had been taken away anywhere by the appellant (Naresh), he (the approver) answered in the affirmative. Further he got recorded that when he saw the girl crying, the appellant was standing at a short distance from her. A bracelet and a silver chain, which were found lying near the dead-body, were identified to belong to the appellant by Ajay Kumar, a first cousin of the deceased, on the spot. 10. The clothes which the appellant got recovered during the course of investigation and a chappal which was found lying on the spot were sent to the Forensic Science Laboratory. The Forensic Expert reported, vide report Ex. PX that the chappal and the pant (Ex. P-30) of the appellant bore stains of human blood of Group-A. On the completion of the investigation, the police challaned the appellant. The Forensic Expert reported, vide report Ex. PX that the chappal and the pant (Ex. P-30) of the appellant bore stains of human blood of Group-A. On the completion of the investigation, the police challaned the appellant. The case was committed by the concerned Judicial Magistrate to the Sessions Court, Kangra at Dharamshala. The learned Additional Sessions Judge (1) tried the appellant and held him guilty of the charge, under Section 302 of the Indian Penal Code and consequently convicted and sentenced him, as aforesaid. 11. Appellant has assailed the finding of guilt, as recorded by the learned trial Court, mainly on the ground that the evidence of the approver, namely PW 16 Ram Chand, is not reliable and that in any case his testimony is not corroborated in material particulars and hence the conviction cannot be founded on it. 12. We have perused the entire record and considered the submissions made by the learned Counsel for the appellant (Mr. Jagdish Vats) as also the learned Additional Advocate General (Mr. Som Dutt Vasudeva). 13. It is by now well settled that the testimony of an accomplice, to become a foundation for the conviction, has to stand a double test. First test (which is applicable to other witnesses also) is that the testimony is credible and inspires confidence of the Court. Second test is that it is corroborated in material particulars by other evidence. Reference in this behalf may be made to Piara Singh v. The State of Punjab [AIR 1969 SC 961]; Sarwan Singh v. State of Punjab [AIR 1957 SC 637] and Ratnprasad v. State of Maharashtra and three other connected matters [AIR 1999 SC 1969]. 14. The corroboration of the testimony of an accomplice, spoken of in illustration (b) to Section 114, is twofold. First that the accomplice himself was involved in the commission of the crime and secondly that the accused sought to be convicted on the basis of his testimony was also a party to the commission of the crime. A Constitution Bench of the Honble Supreme Court in Saravanabhavan and Govindaswamy v. State of Madras [AIR 1966 SC 1278] has ruled so. 15. And why independent corroboration to the testimony of an accomplice is required is explained by the Honble Supreme Court in Haroom Haji Abdulla v. State of Maharashtra [AIR 1968 SC 832]. A Constitution Bench of the Honble Supreme Court in Saravanabhavan and Govindaswamy v. State of Madras [AIR 1966 SC 1278] has ruled so. 15. And why independent corroboration to the testimony of an accomplice is required is explained by the Honble Supreme Court in Haroom Haji Abdulla v. State of Maharashtra [AIR 1968 SC 832]. It has been observed that the reason for the cautionary provision in Section 114, Illustration (b) is that the accomplice, who has betrayed his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. 16. The view that the testimony of an approver needs to be corroborated in material particulars before it is acted upon to convict an accused, has been consistently followed by the Honble Supreme Court in subsequent judgments. Reference in this behalf may be made to State of Tamil Nadu v. Perajmal Ballaji and others [AIR 1998 SC 1044]; M.O. Shamsudhin v. State of Kerala [1995 (3) SCC 351]; Mohd. Hussain Umar Kochra etc. v. K.D. Dalipsinghji and another etc. [AIR 1970 SC 45] and Smt. Mukhtiar Kaur v. State of Punjab [AIR 1980 SC 1871]. 17. It is also well settled that where the testimony of an accomplice is not worthy of credence and is liable to be rejected outrightly, there hardly remains any necessity to look for corroboration. Reference in this behalf may be made to Rampal Pithwa Rahidas and others v. State of Maharashtra and in another case [1994 Supp. (2) SCC 73]. 18. Having noticed the legal position, we now proceed to examine and determine whether the testimony of PW 16 Ram Chand, the approver in this case is reliable and if it is reliable whether it is corroborated in material particulars, regarding approvers own involvment and the involvment of the appellant, in the commission of the crime. 19. Ram Chand PW 16 who was made an accused in the case by the police was tendered pardon during the investigation of the case, vide order dated 18.11.1999 of the learned Chief Judicial Magistrate. The order though not formally proved and made part of the file containing the proved documents, yet the same is available in the challan file. 19. Ram Chand PW 16 who was made an accused in the case by the police was tendered pardon during the investigation of the case, vide order dated 18.11.1999 of the learned Chief Judicial Magistrate. The order though not formally proved and made part of the file containing the proved documents, yet the same is available in the challan file. This order does not require any formal proof being part of the judicial record and so we have looked into it as part of the record. 20. After the tender of pardon, the statement of the approver was recorded by the Additional Chief Judicial Magistrate on 20.11.1999, as per direction of the learned Chief Judicial Magistrate, contained in order dated 18.11.1999, regarding tender of pardon to Ram Chand. The statement so recorded by the learned Additional Chief Judicial Magistrate, Palampur is Ex. PW 8/B. 21. The testimony made by the approver (PW 16 Ram Chand) may be summed up thus. On 13.9.1999, appellant Naresh Kumar came to his house during day time and required him to accompany him on the pretext that he was going for some private work and on the way he told him that he would stop Suman Thakur, when she would be returning home and would take her to the bushes and rape her. The appellant told him that he (the approver) would be afforded an opportunity to enjoy sex with her. He was asked by the appellant to keep watch on the passersby when he himself would be raping the deceased in the bushes. The appellant again came to his house, around 4 p.m. on the same day (i.e. 13.9.1999) and took him towards Khukru road and Mien Suman Thakur came from her school side, viz. from Palampur side, the appellant stopped her and took her towards the bushes and at that time he was at a distance of 100 feet from the appellant. After sometime he heard the cries of Suman Thakur, upon which he got scared and ran to his house and did not disclose this fact to anybody. During the investigation he disclosed this fact to the police. After sometime he heard the cries of Suman Thakur, upon which he got scared and ran to his house and did not disclose this fact to anybody. During the investigation he disclosed this fact to the police. He was then arrested by the police and was later on released on bail, under the orders of the Sessions Judge and after his release he applied for being tendered pardon and his request was acceded to and the Additional Chief Judicial Magistrate then recorded his statement, Ex. PW 8/B. He made the said statement voluntarily and signed the same. 22. In the statement Ex. PW 8/B the approver got recorded that on 13.9.1999 in the afternoon the appellant met him in a street near his house and asked him to accompany him and that when in his company he had walked to a short distance, the appellant told him that Suman Thakur, daughter of Punjab Singh, while returning from the college would be stopped and taken to the bushes and then raped by him (the appellant). He also stated that the appellant told him that he too would get a chance of enjoy sex with her and required him to keep watch on the passersby. He stated that around 4.00 or 4.30 p.m. Suman Thakur came from college side and on seeing her the appellant leaving him behind went towards her, stopped her and then pulled her to the bushes. He stated that after sometime he went there and saw that the girl was crying and appellant Naresh Kumar was standing at a short distance from her. He also got recorded in the said statement that when Sumans Taya (father of elder brother) enquired from him, if he had accompanied Naresh, he told him that he had. 23. There are major contradictions in the two depositions. In the statement in the Court as PW 16 the witness stated that on hearing the cries of Suman Thakur he got scared and ran to his house. He did not state in the examination-in-chief that he went to the bushes and saw the girl crying and the appellant standing at some distance. He was cross-examined with respect to this aspect of the matter. He did not state in the examination-in-chief that he went to the bushes and saw the girl crying and the appellant standing at some distance. He was cross-examined with respect to this aspect of the matter. In the cross-examination he stated that he saw Suman Thakur only up to the point of road when she was being taken to the bushes and thereafter he ran away towards his house and that to the Additional Chief Judicial Magistrate, Palampur also he made a similar statement. But as already noticed, to the Additional Chief Judicial Magistrate vide Ex. PW 8/B, he stated that after sometime he went to the bushes and saw the girl crying and the appellant standing at a short distance. 24. Another contradiction in the two statements is that while in the statement Ex. PW 8/B it is recorded that the appellant met the approver in a street near his house and from there they went towards the road along which the deceased was supposed to come on foot, in the Court, as PW 16, he stated that the appellant came to his house and that too not only once but twice, initially in the forenoon and thereafter around 4.00 p.m. 25. There is yet another contradiction. In the statement Ex. PW 8/ B he got recorded that when the Taya of the deceased enquired of him if the appellant had taken him along, he replied in the affirmative. But in the statement before the trial Court as PW 16 he stated that he did not inform anyone, except the police during the course of investigation of the case, about the incident or about his having accompanied the appellant. 26. The defence side proved on record during the trial, the application for grant of bail that was moved by an Advocate on behalf of the approver. The copy of the application is Ex. DA. The approver was confronted with the contents of this application. He denied that he had given any instructions to his Counsel or that the contents of the application were conveyed to the Counsel, even indirectly through his father. The copy of the application is Ex. DA. The approver was confronted with the contents of this application. He denied that he had given any instructions to his Counsel or that the contents of the application were conveyed to the Counsel, even indirectly through his father. The explanation cannot be believed because the application was moved on behalf of the approver and, therefore, the presumption is that whatever is recorded in it, is based on the instructions conveyed by him to the Counsel directly or indirectly through his father and also because whatever is recorded in this application regarding the alleged incident was supposed to be known to him and the appellant only. Of course, the presumption could have been rebutted by the prosecution by examining the Counsel or leading some evidence, but it chose not to do so. The presumption thus remains unrebutted. 27. Now as per the contents of the application, the approver was innocent. He was told by the appellant that he had been having close relationship with the deceased. Therefore, after the appellant took the deceased to the bushes and the approver heard the cries, he thought that they (the appellant and the deceased) being intimates, were frolicking with each other and so he went to the village. The contents of this application are in total contradiction with the testimony made in the trial Court as also the statement Ex. PW 8/B made to the Additional Chief Judicial Magistrate. 28. The approver is thus contradicted by his own earlier statement and the contents of his application for grant of bail, in material particulars and, therefore, he cannot be said to be a reliable witness. 29. Though on account of the testimony of the approver being not worthy of credence, there is no need to look into and to examine the corroborative evidence led by the prosecution, in view of the law laid down in Rampal Pithwa Rahidas and others v. State of Maharashtra and in another case [1994 Suppl. (2) SCC 73], yet to be fair to the learned Additional Advocate General, who laid much stress on the so called corroborative evidence, we proceed to summarily touch it and record our views about the same. (2) SCC 73], yet to be fair to the learned Additional Advocate General, who laid much stress on the so called corroborative evidence, we proceed to summarily touch it and record our views about the same. According to the learned Additional Advocate General, corroborative evidence consists of the following circumstances:— (a) Appellant had injuries on his person which, according to the medical opinion, had been sustained around the same time, when the incident took place. (b) A chain and a bracelet, belonging to the appellant, had been recovered from the spot. (c) Appellant got recovered his pants (jeans) bearing stains of human blood. (d) The appellant and the approver were seen together near the place of occurrence shortly before the incident took place. (e) The appellant had a motive for the crime. (f) The appellant made a disclosure statement, leading to the recovery of the weapon of offence, i.e. knife Ex. P-6. 30. Regarding circumstance (a), the prosecution relies upon the testimony of PW1 Dr. Surjit Raina. The witness conducted the medical examination of the appellant on 15.9.1999 at 11.30 p.m. and noticed six abrasions and one contusion. The abrasions were on his left shin and the back of the right and the left hands, while the contusion was on the back of the chest. The probable duration of the contusion was less than 24 hours. So it cannot be said to have been sustained by the appellant in the alleged incident. The abrasions, according to the doctor, could have been sustained between two to four days, in a scuffle and could have been caused by means of nails or on account of the appellant coming into contact with thorny bushes or rough surface or barbed wire etc. The explanation offered by the appellant is that the injuries were caused to him by the police during interrogation. His explanation may be true as regards the contusion found on the back of his chest, but not with respect to the other injuries, the duration of which was opined to be two to four days. However, the fact that the appellant was having injuries on his person, the duration of which corresponds to the timing of the incident, does not, by itself prove that he was involved in the commission of the crime. 31. However, the fact that the appellant was having injuries on his person, the duration of which corresponds to the timing of the incident, does not, by itself prove that he was involved in the commission of the crime. 31. It is the case of the prosecution that a chain and a bracelet belonging to the appellant were recovered from the spot where the dead body was lying and the aforesaid two articles alongwith other articles found on the spot were made up into a parcel and the parcel was sealed. This was done on 14.9.1999. The prosecution examined a cousin of the deceased, namely PW 21 Rakesh Kumar, who testified that the chain Ex. P-8 and bracelet Ex. P-13 belonged to the appellant, as he had seen him (the appellant) wearing the same several times and that the saw him wearing those articles two three days before the incident also. The testimony of the witness cannot be believed, for several reasons. First, PW 22 Inspector Jagan Nath who effected the recovery of various articles, including chain the and the bracelet, on 14.9.1999, nowhere says, in his testimony, that the bracelet and the chain were identified to be belong to the appellant by anybody. Secondly, in the memo of recovery of these articles, Ex. PW 10/B, there is no mention that these articles were identified by anybody, let alone PW 21 Rakesh Kumar. Thirdly, Rakesh Kumar is not a witness to the recovery memo Ex. PW 10/ B. Fourthly, the witness is not even named in the list of witnesses filed with the challan. Consequently, the circumstance cannot be said to stand proved. 32. Evidence regarding the alleged disclosure statement leading to the clothes of the appellant is quite fishy. The prosecution has examined PW 13 Gian Chand, one of the two alleged independent witnesses, associated at the time of the interrogation of the appellant. The witness has stated that he was called telephonically by the police to a point two kilometers away from the police station, and close to the site of recovery of clothes. He stated that the site from where the clothes were recovered was only 50 meters away from the point he was called telephonically. The witness has stated that he was called telephonically by the police to a point two kilometers away from the police station, and close to the site of recovery of clothes. He stated that the site from where the clothes were recovered was only 50 meters away from the point he was called telephonically. Now the fact that the witness was called to a place, other than the police station and that place was close to the site of the recovery of the clothes, indicates that the police already knew that the clothes had been kept at the said site. If, that is so, the recovery cannot be said to be in pursuance of the alleged disclosure statement made by the appellant. 33. Two witnesses have been examined by the prosecution to prove the allegation that the appellant and the approver was seen near the site where the dead-body was found lying, around the time of the occurrence. They are PW 3 Jangi Ram and PW 4 Amin Chand. Jangi Ram PW 3 has stated that the appellant and the approver were seen at a point about 150 yards away from the place of occurrence around 1.30 p.m. on 13.9.1999. The witness is a Chowkidar of the school, of which the appellant had been a student. The other witness PW 4 Amin Chand, a farmer, says that he saw the appellant and the approver at 2.00 or 3.00 p.m. The testimony of both these witnesses is inherently incorrect. According to the testimony of the approver, it was around 4.00 p.m. that he accompanied the appellant towards the road by which the deceased was supposed to return. Now if that is so, the appellant and the approver could not have been spotted anywhere near the place of occurrence or by the side of the road by which the deceased was to return to her village, at 1.30 p.m. as testified by PW 3 Jangi Ram or at 2.00 or 3.00 p.m., as testified by PW 4 Amin Chand. Moreover, Amin Chand stated that the appellant and the approver were not known to him from before and that he saw them on that day for the first time. Thus this circumstance can also not be said to have been established. 34. Moreover, Amin Chand stated that the appellant and the approver were not known to him from before and that he saw them on that day for the first time. Thus this circumstance can also not be said to have been established. 34. Prosecutions allegation is that the deceased had a god brother named Rajinder Kishan, examined as PW 14 and a few days prior to the incident she had confided to him that the appellant had been teasing her and he apprehended danger to her life at his hands. PW 14 allegedly informed the mother and a brother of the deceased namely PW 5 Vijay Kumar about what the deceased confided to him on 14.9.1999, when the relatives of the deceased were searching for her. PW 14 Rajinder Kishan does not support the prosecution version. He denies that the deceased had ever informed that the appellant teased her or she apprehended danger to her life at his hands. He also denied that the deceased was his god sister, but stated that she treated him as her brother. PW 5 Vijay Kumar the brother of the deceased no doubt says that Rajinder Kishan had informed him and his mother about what had allegedly been confided to him by the deceased, but the mother of the deceased Smt. Raksha Devi, examined as PW 11, is silent about this aspect of the matter. Under this circumstance, this circumstance can also not be said to have been established. 35. The knife Ex. P-6, allegedly recovered at the instance of the appellant is not the weapon of offence, per testimony of PW 2 Dr. Suresh Sakayan, Professor and Head of Forensic Department. The witness has very categorically opined that none of the injuries noticed on the dead-body could have been caused by means of knife Ex. P-6. So the recovery of the knife is not a relevant piece of evidence at all. 36. As a result of the above stated position, we have no option but to accept the appeal, set-aside the judgment of the learned trial Court and acquit the appellant. Accordingly the appeal is accepted, the impugned judgment dated 28.3.2003 of the learned trial Court is set aside and the appellant is acquitted. The appellant being in custody, is ordered to be released forthwith, if his detention is not required in some other case. Appeal allowed.