JUDGMENT T.P.S. Mann. J.:-The appellants were tried by Additional Sessions Judge, Gurdaspur under Section 304 I.P.C.on the allegations that they committed culpable homicide not amounting to murder by causing the death of Subhash Kumar on 26-01-1993 at about 8.30 P.M. 2. F.I.R. Exhibit PM/2 was registered on the basis of the statement Exhibit PM made by Udhe Singh, PW9 before A.S.I Bhagwant Singh, PW11. It was stated therein by the informant that he was working as a Chowkidar in the Rehri Market at Batala. He was on duty as such on 26-01-1993 at about 8.00/8.30 P.M. Three persons, who were present there, started talking to another person, who came in a drunkard condition. Two more persons came on a rickshaw. The three persons, who were in a drunken condition, threatened the other persons, who retaliated to the same. Those three persons then started beating the two persons, who got down from the rickshaw. Those two persons also started beating the other three persons. Brick bats were thrown at those three persons. A brick bat thrown by one of the two accused, hit one person while his mouth was pressed by another. The one, who received injuries, was removed to the hospital but he died. 3. After recording of the statement Exhibit PM, A.S.I. Bhagwant Singh, PW11 started the investigation. He prepared the inquest report Exhibit PO and sent the dead body for post-mortem examination. Blood stains were recovered from the place of occurrence. Blood stained brick bat was also taken into possession from the spot vide Memo Exhibit PQ. Visual site plan Exhibit PR was prepared. On 14-02-1993, both the accused were produced by Tilak Raj and Mulkh Raj in the Police Station and they were arrested. On the basis of a disclosure statement made by Satnam Singh, accused, purse Exhibit P2, photograph Exhbit P3, pant Exhibit P4 and attendance card Exhibit PG belonging to the deceased were taken into possession. Similarly, Harjit Singh, accused got recovered a wrist watch which was kept concealed by him in a box in his residential house. After the completion of the investigation, final report under Section 173 Cr.P.C. was submitted. 4. Both the accused were charged under Section 304 I.P.C. but they pleaded not guilty and claimed trial. 5. The prosecution examined Dr. Harbhajan Singh, PW1, who deposed about the postmortem examination conducted by him on the dead body of Subhash Kumar, deceased. After the completion of the investigation, final report under Section 173 Cr.P.C. was submitted. 4. Both the accused were charged under Section 304 I.P.C. but they pleaded not guilty and claimed trial. 5. The prosecution examined Dr. Harbhajan Singh, PW1, who deposed about the postmortem examination conducted by him on the dead body of Subhash Kumar, deceased. Dr. Ravinder Kumar, PW2 stated about the admission of the deceased in Civil Hospital, Batala on 26-01-1993 when he was brought alive by A.S.l. Tirath Ram. Charan Singh, PW3 stated that on 26-01-1993, he handed over a chit Exhibit PC in Police Station City, Batala as directed by Dr. Ravinder Kumar. Satish Chander, Draftsman, appeared as PW4 and proved the scaled site plan Exhibit PF. Surinder Singh Kalsi, PW5 stated that Subhash Chander deceased used to work with him on daily wages and he had issued an attendance card Exhibit PG to him upon which, his presence was marked upto 26-01-1993. 6. Tilak Raj, PW6 deposed about the extra judicial confession made before him by both the accused on 10-02-1993. On the following day, he went to Inspector Vikram Sharma in Police Station BataIa and apprised him about the facts as told to him by the two accused. Said Inspector deputed A.S.I. Bhagwant Singh for investigation, who arrested the accused on 14-02-1993. He also stated about the disclosure statements made by the two accused besides the subsequent recoveries in pursuance of the same. Smt. Kamlesh Rani, PW7 deposed that her husband Subhash Kumar went to the workshop on 26-01-1993 but did not return home. Someone committed his murder. She identified wrist watch Exhibit P1, purse Exhibit P-2 and photographs Exhibit P-3 belonging to the deceased. She also stated that pant Exhibit P-4, shirt Exhibit P-5, Jersey Exhibit P-6, Banian Exhibit P-7 and Kacha Exhibit P-8 were worn by the deceased on the day he left the house. Sub Inspector Tirath Ram, PW8 testified that he was deputed as a Flying Officer on 26-01-1993. He received an information that a person was lying unconscious at the place of occurrence. He reached the said place and then removed the injured to Civil Hospital, Batala. Udhe Singh, first informant, appeared as PW9 and deposed on almost the identical lines as stated in his statement Exhibit PM. Wasakhi Ram, PW10 identified the dead body of Subhash Kumar at the time of preparation of inquest report. He reached the said place and then removed the injured to Civil Hospital, Batala. Udhe Singh, first informant, appeared as PW9 and deposed on almost the identical lines as stated in his statement Exhibit PM. Wasakhi Ram, PW10 identified the dead body of Subhash Kumar at the time of preparation of inquest report. His statement was recorded in that respect. A.S.I. Bhagwant Singh, PW11 was the Investigating Officer of the case. Affidavit Exhibit PV of M.H.C. Lakhwinder Singh, Report Exhibit PT of Chemical Examiner and report Exhibit PU of Serologist were tendered into evidence. The prosecution closed its case thereafter. 7. When the accused were examined under Section 313 Cr.P.C., they denied the allegations of the prosecution and said that they were falsely implicated in the case. Accused Satnam Singh stated that he was illegally detained by the police on 27-01-1993 about which a telegram was also sent to the Sessions Judge. He was detained in Police Station City Batala for a number of days and false recoveries were planted on him. Similarly accused Harjit Singh stated that he was arrested by the police towards the end of January, 1993 and was illegally detained for a number of days and false recoveries were shown to have been effected from him. Accused Satnam Singh tendered into evidence certified copy of the telegram dated 06-02-1993 Exhibit DA and postal receipt Exhibit DB and then the accused closed their defence evidence. 8. The trial Court after hearing learned counsel for the parties and perusing the evidence, believed the prosecution version. Accordingly, both the accused were convicted under Section .304 LP. C and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/­ each, in default of payment of fine to undergo further rigorous imprisonment for two months each vide judgment and order dated 02-09-1994. 9. Aggrieved by the same, the appellants have filed the present appeal. 10. I have heard learned counsel for the parties and gone through the evidence led by the parties and documents brought on the record. 11. The case rests entirely upon the testimony of Udhe Singh, PW9, who deposed regarding the occular account. Said Udhe Singh, as per his own testimony did not know the accused or the deceased. 10. I have heard learned counsel for the parties and gone through the evidence led by the parties and documents brought on the record. 11. The case rests entirely upon the testimony of Udhe Singh, PW9, who deposed regarding the occular account. Said Udhe Singh, as per his own testimony did not know the accused or the deceased. While making statement Exhibit PM or while appearing as PW9, he did not mention anywhere about the features from which the accused could be identified. The occurrence had taken place at 8.00/8.30 P.M. on a wintry night. In the statement Exhibit PM, it was stated by Udhe Singh that he had seen the accused in the light of the torch which he was holding in his hand. While appearing as PW9, he stated that besides the torch light, there was tube light at the spot which helped him in seeing the accused. However, he was successfully confronted with his statement Exhibit PM regarding the identification of the accused in the tube light. 12. When the accused were not known to him previously and he had the option to see them only in the light of torch hold by him, the prosecution was duty bound to hold test identification parade of the accused after their arrest. Udhe Singh, PW9 stated that the police did not summon him in the Police Station for the identification of the accused. A.S.l. Bhagwant Singh, PW11 stated that after the production of the accused by Tilak Raj and Mulkh Raj in the Police Station and effecting of recoveries, they were arrested in the case. He further stated that before the accused were produced before him, the identity of the accused was not known to him. It was only after their production by Mulkh Raj and Tilak Raj that he came to know about their involvement. With this background of the case, the prosecution was duty bound to make necessary arrangements for holding a test identification parade so as to fix the identity of the accused. Nothing of that sought was done. Under these circumstances, the identification of the accused by Udhe Singh, PW9 for the first time in the Court was not sufficient so as to fix their presence at the time of the occurrence. The version of Udhe Singh, PW9 that he had seen the occurrence, is highly improbable. Nothing of that sought was done. Under these circumstances, the identification of the accused by Udhe Singh, PW9 for the first time in the Court was not sufficient so as to fix their presence at the time of the occurrence. The version of Udhe Singh, PW9 that he had seen the occurrence, is highly improbable. According to him, his duty was that of Chowkidar. That would have required him to at least intervene in the exchange of abuses said to be going on at the spot. He did not do any such thing. Moreover, according to him, he had removed the deceased when he was alive, to the hospital. To the contrary, we have the testimony of Sub Inspector Tirath Ram, PW8, who stated that he received an information on 26-01-1993 that a person was lying unconscious at the place of occurrence. He alongwith the police party reached there. Blood was oozing from the body. He then removed the victim to Civil Hospital. He went to the extent of making an application Exhibit PD before the doctor to ascertain as to whether the injured was fit to make a statement. At this, the doctor gave opinion in the negative. This PW even donated blood of his own son to save the victim. At no point of time, Sub Inspector Tirath Ram talks about the presence of Udhe Singh, PW9 at the spot with the victim. The presence of Udhe Singh, PW9, who claimed to be the one, who had removed the victim to the hospital, was not noticed by Dr. Ravinder Kumar, PW2 who sent intimation Exhibit PC to S.H.O. Police Station, City Batala after the arrival of the victim in the hospital. A perusal of intimation Exhibit PC reveals that an unknown person was brought to the hospital by a police party (Tirath Ram, Sub Inspector City, Batala). On the other hand, Udhe Singh, PW9 nowhere states about the police party arriving at the spot or removing the victim to the hospital. 13. The occurrence had taken place on 26-01-1993 at about 8.00/8.30 P.M. The victim was removed to the hospital where he was attended to by the doctor at 10.15 P.M. He expired on 27-01-1993 at 2.15 P.M. Uptil that point of time, Udhe Singh does not make any statement. 13. The occurrence had taken place on 26-01-1993 at about 8.00/8.30 P.M. The victim was removed to the hospital where he was attended to by the doctor at 10.15 P.M. He expired on 27-01-1993 at 2.15 P.M. Uptil that point of time, Udhe Singh does not make any statement. It was only after a chit was received from Civil Hospital, Batala regarding the death of unknown person that A.S.l. Bhagwant Singh claims to have reached the hospital and recorded the statement Exhibit PM of Udhe Singh at 4.50 P.M. On the basis of the same, formal F.I.R. Exhibit PM/2 was recorded at 5.00 P.M. There is, thus, an unexplained delay of about 20 hours in making of statement Exhibit PM by Udhe Singh. Even in the said statement, no one was named as an accused. However, a version was set up against some unknown persons of having striking the victim with a brick bat and pressing his mouth. A close scrutiny of statement Exhibit PM would reveal that Udhe Singh does not mention anywhere as to whether accused had struck the victim with a brick bat or pressed the mouth. It is only stated that after the exchange of abuses, an altercation ensued, which attracted Udhe Singh to the spot, who saw the victim, lying on the spot and blood was oozing out from his head. 14. Coming to the evidence of Tilak Raj, PW6 before whom the accused were said to have made extra judicial confession, it may be noticed that after being informed on 10-02-1993 about the occurrence by the accused in which Subhash Chander was killed, he did not make any effort to produce them before the police immediately. On the next date i.e. 11-02-1993, he went to Police Station Batala and apprised Inspector Vikram Sharma about the occurrence who further deputed A.S.I Bhagwant Singh for investigation. The arrest of the accused was further delayed upto 14-02-1993. lf the police had already come to know about the involvement of the accused on 11-02-1993 then police would not have wasted any time in zeroing on the accused immediately. The police waited upto 14-02-1993 when Tilak Raj alongwith Mulkh Raj produced the accused in the Police Station. The arrest of the accused was further delayed upto 14-02-1993. lf the police had already come to know about the involvement of the accused on 11-02-1993 then police would not have wasted any time in zeroing on the accused immediately. The police waited upto 14-02-1993 when Tilak Raj alongwith Mulkh Raj produced the accused in the Police Station. Surprisingly, A.S.l. Bhagwant Singh, PW11 stated in his cross examination that it was only after the production of the accused by Tilak Raj and Mulkh Raj that he came to know about their involvement, though Tilak Raj PW6 had already apprised Inspector Vikram Sharma on 11-02-1993 about the extra judicial confession and said Inspector Vikram Sharma deputed A.S.I. Bhagwant Singh for investigation. 15. In his cross examination, Tilak Raj, PW6 stated that the deceased was resident of the same locality in which he was residing. He attended the cremation of the deceased and at that time, the accused were present there. Members of the police party were also present. If the accused were to repose confidence in Tilak Raj, PW6, being Municipal Commissioner of Batala on 10-02-1993, they could very well do it on the day when the deceased was cremated. Moreover, Police Station City Batala was situated at a few yards from the house of Tilak Raj as admitted by him. If the accused had approached him on 10-02-1993 and made extra judicial confession before him, he would have wasted no time in producing them before the police. 16. The recovery of various articles belonging to the deceased at the instance of the accused, is nothing but a crude padding done by the Investigating Agency so as to connect the appellants with the crime. There was no allegation whatsoever that any of the accused had removed watch, purse, photograph and pant belonging to the deceased at the time of occurrence. Even no such mention was made in intimation Exhibit PC that the victim was not wearing the pant at the time when he was brought to the hospital on 26-01-1993 at 10.00 P.M. If the victim was not wearing the pant when he was removed to the hospital, the doctor would have clearly stated so on account of the fact that it was winter season and the victim was supposed to be wearing a pant. Under these circumstances, the recovery of the belongings of the deceased at the instance of the accused is held to be a clear device by the Investigating Agency so as to implicate the accused. Upshot of the above discussion leads this Court to conclude that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. Accordingly, the appeal is accepted. Conviction and sentences of the appellants are set aside and they are acquitted of the charge against them. Fine, if already paid, shall be refunded to them. —————————————