JUDGMENT M.R. Verma, J. :- This appeal is directed against the judgment dated 19.6.2004 passed by the learned Sessions Judge Sirmour District at Nahan, whereby the appellant-accused (hereafter referred to as the accuse) has been convicted under Sections 224, 332, 307, IPC and Section 25(1 A) of the Indian Arms Act and has been sentenced to rigorous imprisonment for two years and fine Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for three months under Section 224, I.P.C.. rigorous imprisonment for three years and fine Rs. 2.000/-and in default of payment of fine to suffer further rigorous imprisonment for a term of six months under section 332,IPC,rigorous imprisonment for five years and fine Rs. 3000/- and in default of payment of fine to suffer further rigorous imprisonment for a term of nine months under Section 307 IPC; and rigorous imprisonment for five years and fine Rs.2.000/-and in default of payment of fine to suffer further rigorous imprisonment for six months under Section 25(1 A) of the Arms Act. 2. Case of prosecution is that the accused had absconded from the custody of a police escort of which HC Mukhtiar Ahamand (PW-2) was also a member when he was taken to Karnal for production before a Court in connection with some case. ASI Daya Ram(PW-11), the then Head Constable and Incharge, Traffic at Paonta Sahib, on 12.3.2002 alongwith HC Meen Singh was on traffic checking on Kafota-Baswari side.On 13.3.2002 he received a secret information that the accused was coming to meet his children in his house in village Jamna. PW-"J1 informed the concerned Superintendent of Police who directed him that he had already deputed HHC Gurdial Singh, H.C. Beer Singh (PW-3) and PW-2 to search the accused and that he should contact the aforesaid police officials and take further action as may be warranted by the circumstances. Then PW-11 came to Jamna where he contacted the police party led by HHC Gurdial Singh and after due deliberations a plan to arrest the accused was prepared. In implementation thereof the police officials proceeded to the house of the accused in village Jamna from different directions on the intervening night of 13th and 14th March, 2002 at 12.30 a.m. When the police party was passing through the fields they were noticed by the accused, his father Punia Ram and three other companions of the accused. In implementation thereof the police officials proceeded to the house of the accused in village Jamna from different directions on the intervening night of 13th and 14th March, 2002 at 12.30 a.m. When the police party was passing through the fields they were noticed by the accused, his father Punia Ram and three other companions of the accused. In the torchlight the police party recognized the accused and he was asked to surrender. PW-2 rushed towards the accused to apprehend him but the accused fired a shot with Katta (Ext. P-1) which missed PW-2. Thereafter a scuffle took place between the two in which PW-2 snatched the Katta from the accused. In the meanwhile, the three companions of the accused, his father Punia Ram and wife Nago Devi, pelted stones on the police party and the assailants were encouraged by Nago Devi in the process of pelting stones which resulted in causing an injury on the forehead of PW-2. He was removed for treatment. Ext. P-1 was handed over by PW-2 to PW-11 who took it in possession and at a later stage handed it over to ASI Balak Ram (PW-12) vide memo Ext. PW-10/A alongwith an empty cartridge and also made statement Ext.PW-11/A to PW-12 on the basis of which FIR Ext. PW-12/A was recorded at Police Station, Paonta. During the course of the investigation, five stones were taken in possession from the spot vide memo Ext. PW-5/A and the MLC Ext PW-1/B was also taken in possession by the Police from Dr. B.L. Garg. (PW-1) Katta Ext. P-1, empty cartridge, stones were sent to the State Forensic Science Laboratory for analysis and the report about the outcome of these articles is Ext. PW12/D. For being in unlawful possession of Katta Ext. P-1 prosecution sanction against the accused was obtained from the concerned District Magistrate, copy whereof is Ext.PW-4/A. On investigation, the police could not find the particulars of three companions of the accused therefore, finally no action was taken against them. A charge-sheet against Punia Ram and Nago Devi was submitted on 10.6.2002. A supplementary charge sheet was submitted against the accused on 17.8.2002. On the basis of this supplementary charge-sheet the accused came to be tried by the trial Court on a charge under Sections 224, 332, 307. IPC and Section 25 of the Indian Arms Act. 3. A charge-sheet against Punia Ram and Nago Devi was submitted on 10.6.2002. A supplementary charge sheet was submitted against the accused on 17.8.2002. On the basis of this supplementary charge-sheet the accused came to be tried by the trial Court on a charge under Sections 224, 332, 307. IPC and Section 25 of the Indian Arms Act. 3. To prove the charge against the accused, prosecution examined as many as 12 witnesses. Statement of the accused under Section 313, Cr. P. C. was recorded wherein he denied the prosecution case as a whole and claimed that he has been falsely implicated in the case. The accused, however, did not lead any defence. 4. On appreciation of the material on record, the trial Court convicted and sentenced the accused as aforesaid. Hence, this appeal by the accused. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. It may be pointed out at the very outset that it is not clear from the records as to how this case came to be tried separately from the main charge sheet which was presented about two months before the presentation of the supplementary charge sheet against the .accused. However, it is not in dispute that Punia Ram and Nago Devi were tried in the Court of the learned Chief Judicial Magistrate who found that the prosecution case against them unreliable, therefore, acquitted them and the State has not preferred any appeal against the said acquittal which has now become final. 7. It was contended by the learned Counsel for the accused that the accused has been falsely implicated in the case and the evidence led by the prosecution is inconsistent, contradictory and fabricated and the statements of the material witnesses about the circumstances under which the injury was sustained by PW-2 is contradictory of each other. It is not explained by the prosecution as to from where the empty cartridge and five live cartridges were recovered by the police and what happened to the five live cartridges which were sent to the laboratory for analysis. It is not explained by the prosecution as to from where the empty cartridge and five live cartridges were recovered by the police and what happened to the five live cartridges which were sent to the laboratory for analysis. It was also contended that there is no evidence at all that the search party was ever constituted by the Superintendent of Police or the requisite instructions were given to the search party as claimed by the prosecution and the very constitution of such party is belied by the admission of the prosecution witnesses that Mukhtiar Ahamad (,PW-2) who was admittedly under suspension was included as a member of the police search party whereas being a suspended employee he could not have been so included. It was further contended that a false case has been engineered against the accused, his father and wife only with a view to harass the father and the wife of the accused who have already been acquitted by the trial Court holding that the prosecution case was unreliable and such findings have not been called in question by the State and the net result, thus, is that the impugned conviction and sentence based on similar evidence cannot be sustained and deserve to be set aside. 8. On the other hand, the learned Deputy Advocate General contended that it was not necessary to produce the records regarding the constitution of the search party when it is so stated by the witnesses and the occurrence apart from being supported by the material witnesses finds further corroboration from the medical evidence, therefore, the impugned judgment of conviction and sentence cannot be faulted with and calls for no interference. 9. To give the eye account of the occurrence, as alleged by the prosecution, the prosecution examined and relied on the statements of PW-2, PW-3, and PW-11 who are all police officials. No doubt, police officers are as good witnesses as any other witness but it is a rule of caution that while appreciating their evidence extra care and caution has to be taken by the Court to arrive at the right conclusion. No doubt, police officers are as good witnesses as any other witness but it is a rule of caution that while appreciating their evidence extra care and caution has to be taken by the Court to arrive at the right conclusion. In case while appreciating the testimony of the police officials with the require due care and caution the Court finds their evidence natural, cogent, trustworthy and confidence inspiring there should be no hesitation in accepting such evidence but it is not so the benefit must go to the accused. In the case in hand, the prosecution version and the statements of the police officials are not confidence inspiring for a variety of reasons and in my view there is no cogent, reliable and confidence inspiring evidence on record to sustain the impugned conviction and sentence. 10. It is not in dispute that HC Mukhtiar Ahamad (PW-2) at the relevant time was under suspension and was facing departmental action whereas all the material witnesses namely, PW-2, PW-3 and PW-11 have stated that he was a member of the police party which was constituted by the Superintendent of Police, Sirmour to arrest the accused. The search and arrest of an absconder or an accused who has escaped from the police custody is an official and public duty of the police officials and such a person can be arrested by them without authorization by the Court or any other superior authority. The question here, however, is whether a suspended police officials can be deputed for discharging his official and public duties. In answer to this query, the learned Deputy Advocate General has to concede that a suspended employee cannot be detailed to discharge any official/public duties. Against this background, the prosecution version that a party to arrest the accused was constituted of which PW-2 was a member and thus happened to be on the spot is rendered highly doubtful. 11. There are material contradictions in the statements of PW-2, PW-3 and PW-11 about the constitution of the team to arrest the accused. According to PW-11 when he informed the Superintendent of Police on 13.3.2002 about the likely presence of the accused in his house, the later informed him that a police party had already gone to Jamna i.e. the village of the accused to apprehend him and he was instructed to meet such police party at Jamna. According to PW-11 when he informed the Superintendent of Police on 13.3.2002 about the likely presence of the accused in his house, the later informed him that a police party had already gone to Jamna i.e. the village of the accused to apprehend him and he was instructed to meet such police party at Jamna. Thus, till 13.3.2002, PW-11 had nothing to do with the police party allegedly formed and sent for arrest of the accused in Jamna. Till then he was admittedly doing traffic checking as was his assigned duty at the relevant time at Kafota and Tirlordhar and was not a member of the party which allegedly had been constituted and sent for apprehending the accused. Contrary to this, evidence of PW-2 is that the Superintendent of Police had constituted such police party on 11.3.2002 which consisted of himself, Daya Ram (PW-11), HHC Meen Singh, HHC Beer Singh (PW-2) and HHC Gurdial Singh. PW-3 does not state at all as to when the police party in question was constituted and who were the members there of except himself and PW-2. Ordinarily and admittedly when such police teams are constituted and detailed for the duty, as alleged, the entries in this regard are duly incorporated in the Daily Diary maintained at the concerned Police Station/Police Post and as and when any message about constitution of such party is received from the higher authorities whether in writing or orally or telephonically or by wireless message, record thereof is maintained in the form of reports in the daily diary. In this case, no such record has been produced in evidence nor is stated to have been maintained rendering it not possible to conclude that there was in fact a police team constituted for the purpose of apprehending the accused which inter alia included PW-2, PW-3 and PW-11. 12. It is not in dispute that there are 50/60 houses in village Jamna as admitted by PW-10. It has been suggested to all the material witnesses that on the date of incident there was a marriage at the house of Munshi Ram in village Jamna and such suggestions have been denied by PW-2 and PW-3. PW-11 had betrayed ignorance of such a marriage in village Jamna on the relevant day. It has been suggested to all the material witnesses that on the date of incident there was a marriage at the house of Munshi Ram in village Jamna and such suggestions have been denied by PW-2 and PW-3. PW-11 had betrayed ignorance of such a marriage in village Jamna on the relevant day. However, the only independent witness produced in the case namely, Ran Singh (PW-10) who was President of Gram Panchayat, Jamna at the relevant time has admittedly that on the relevant day there was a marriage in the village in the house of Munshi Ram and at that time he had not seen Kalyan Singh either in the marriage or in the village. If there was a marriage in the village, consisting of 50/60 houses, as admitted by PW-10, there could not be death of independent witnesses who might have heard and seen the occurrence but no independent witness of the occurrence from amongst the villagers or those who were attending the marriage has been produced. The only independent witness who has been produced is not aware of the occurrence. This also casts doubts about the prosecution version regarding the alleged occurrence. 13. It is case of the prosecution that Punia Ram, father of the accused, Nago Devi, wife of the accused, the accused and his three companions pelted stones on the police party which caused injury to PW-2. It is further case of the prosecution that Nago Devi instigated other offenders to pelt the stones. Three of the companions of the accused alleged to have pelted the stones, as aforesaid, are still unknown. Punia Ram and Nago Devi have been tried on the basis of this version and have been acquitted as the evidence admittedly consisting of the present set of witnesses as eye witnesses was found unreliable. Such an acquittal has not been challenged by way of any appeal by the State. It is, therefore, another (actor to look upon the prosecution version with suspicion. 14. To lend corroboration to the statements of these three police officials who are the alleged eye witnesses of the occurrence, five such stones which were allegedly pelted by the accused and his father, wife and companions were taken in possession by the police from the spot vide memo Ext.PW-5/A. These stones were identified as the pelted stones by PW-11 who admittedly did not sustain any injury. The occurrence admittedly took place during night. There is no explanation as to how PW-11 who was not even hit with the stone had identified the five stones as the stones having been pelted on the police party and having resulted in causing injury to PW-2 who did not identify any of such stones as weapon of offence. Admittedly, no blood stains were found on such stones which are capable of being collected from any place and at any time. There is no evidence that these stones after recovery were ever deposited in the Malkhana and remained in safe custody. Thus, the recovery and production of these stones does not lend any corroboration to the statements of, PW-2, PW-3 and PW-11. 15. The prosecution has also relied on the recovery of Katta Ext. P-1 and an empty cartridge shell vide memo Ext. PW-10/A to corroborate the version of PW-2, PW-3 and PW-11. It is admitted case of the prosecution that Katta Ext. P-1 was snacked by PW-2 from the accused and he handed it over to PW-11 who produced it and the empty cartridge shell before PW-12 who took into in possession vide memo Ext. PW-10/A in the presence of Ran Singh (PW-10). There is, however, no evidence on record as to from where the empty cartridge was found and collected by PW-11. It is not shown to have recovered either from the place of occurrence or from within the Katta Ext. P-1. Thus, it remains a mystery as to from where \he empty cartridge landed in the hands of PW-11 who himself does not state as to from where he got it. 16. Evidence of PW-10 in whose presence the Katta Ext. P-1 and the empty cartridge are alleged to have been produced by PW-11 before PW-12 is that PW-11 produced one Katta and bullet before PW-12. A bullet cannot be an empty cartridge and an empty cartridge cannot be a bullet as there is defined distinction between these two parts of a live cartridge. Thus, a further doubt is created as to whether any empty cartridge or a bullet was produced by PW-11 before PW-12. In any case, even if it was a bullet, it is not known wherefrom and by whom, it was found. 17. Thus, a further doubt is created as to whether any empty cartridge or a bullet was produced by PW-11 before PW-12. In any case, even if it was a bullet, it is not known wherefrom and by whom, it was found. 17. The mystery about the recovery is multiplied in view of the statements of Constable Devinder Singh (PW-7), HC Krishan Chand (PW-8) and HHC Sita Ram (PW-9). According to PW-7 on 24.4.2002, MHC Navin Kumar handed over three parcels to him which he handed over to PW-8. PW-8 claims to have received three sealed parcels from Police Post, Rajban through PW-7 but on 31,5.2002 he sent two sealed parcels alongwith five live cartridges to FSL Junga through PW-9. According to PW-9 he was handed over the aforesaid case property by PW-8 which he delivered in FSL Junga. As per the report of the Assistant Director, FSL, Junga, only two parcels were received in the Laboratory, one containing the Katta (country made pistal) and one containing empty cartridge. There is no explanation as to from where those five live cartridges were procured, why those were sent to FSL, and why those were not delivered in the Laboratory. 18. It may also be pointed out that taking into possession of the empty cartridge seems to be a padding during investigation because as per the version contained in Ext. PW-11/A, PW-11 handed over only Katta to PW-12 and there is no reference that any empty cartridge was also handed over by PW-11 to PW-12 alongwith the Katta. From this padding the only inference which can be drawn is that the investigation in the case was not fair which adversely affects the prosecution case. 19. Even the medical evidence produced by the prosecution to corroborate the version of PW-2, PW-11 and PW-12 is shady and suspicious. The initial version of the prosecution, as per the contents of FIR Ext. PW-12/A based on the statement PW-11 under Section 154, Cr.P.C, Ext. PW-11/A, is that PW-2 sustained injury because of the pelting of the stones and it was with great difficulty that he was brought to the road and in view of his serious condition he was sent for treatment to District Hospital, Nahan. PW-12/A based on the statement PW-11 under Section 154, Cr.P.C, Ext. PW-11/A, is that PW-2 sustained injury because of the pelting of the stones and it was with great difficulty that he was brought to the road and in view of his serious condition he was sent for treatment to District Hospital, Nahan. There is no evidence on record that PW-2 was ever sent for treatment to District Hospital, Nahan or he was ever treated for the injury in the said hospital either on direct admission or on being referred by any Medical Officer of any other hospital. At the trial prosecution has produced Dr. B.L. Garg (PW-1), a Medical Officer then posted at PHC, Jakhna, who states that on 14.3.2002 on the basis of an application Ext. PW-1/A from the police he examined Mukhtiar Ahamad, Head Constable, and found one lacerated injury over his forehead which was simple and caused by a blunt weapon within 24 hours of the examination. He has issued the MLC Ext. PW-1/B in this regard and as per his opinion such injury could be caused by pelting of stones. PW-2 and PW-3 have also stated that PW-2 was taken for treatment to PHC, Jakhna. This evidence of the prosecution also appears to be engineered in view of the contents of application Ext. PW-1/A on the basis of which PW-1 claims to have examined PW-2 for the reason that PW-2 was examined on 14.3.2002 whereas application Ext. PW-1/A is dated 15.3.2002 and is not for medical examination of PW-2 but for issue of a Medico Legal Certificate in respect of PW-2. Thus, the contents of application Ext. PW-1/A belie the version. of PW-1 about the circumstances under which the MLC Ext.PW-1/B came into being. Thus, this medical evidence being not cogent, consistent and free from doubt is also not worth reliance. 20. It is constant case of the prosecution that PW-2 sustained the injury by the pelting of the stones by the accused and his companions. However, it is unambiguously stated by PW-11 that the injury was suffered by PW-2 in a scuffle. Sustaining of an injury in a scuffle or as a result of pelting of a stone are two absolutely distinct situations. However, it is unambiguously stated by PW-11 that the injury was suffered by PW-2 in a scuffle. Sustaining of an injury in a scuffle or as a result of pelting of a stone are two absolutely distinct situations. Thus, the most material witness in the case contradicts the prosecution version and the evidence of PW-2 and PW-3 that injury was sustained by PW-2 as a result of the pelting of the stones at him by the accused and his companions. 21. In view of the above, the statements of PW-2, PW-3 and PW-11 are not confidence inspiring and are not corroborated by any independent and trustworthy evidence. Therefore, conviction of the accused could not have been based on their statements and as such the impugned conviction and sentence are liable to be set aside. 22. As a result, this1 appeal is allowed and the impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. The accused who is presently in jail undergoing the sentence of imprisonment, be set at liberty forthwith unless required to be detained in the jail/custody under any other process of law. -