JUDGMENT K.S. Garewal, J.:- Chaman Lal alias Guddu (60) of Kahari, Police Station Nagrota, District Kangra (H.P.) was sentenced to death by learned Additional Sessions Judge, Gurdaspur vide judgdment dated August 7/10, 2008, for the, murder of Uttam Singh and other related offences. His five co-accused were acquitted. 2. We have before us Murder Reference No.7 of 2008 forwarded by the learned Additional Sessions Judge and Criminal Appeal No.531 DB of 2008 filed by Chaman Lal alias Guddu, both of which shall be decided together. 3. Uttam Singh, his wife Satwant Kaur and son Jagdeep Singh Bhatti were attacked on the night intervening June 10/11, 2002 in their house in Jugial Shahpur Kandi, District Gurdaspur. But the details of the attack emerged much late. The perpetrators of this crime had also committed an armed robbery at Ranjit Filling Station belonging to Beli Ram in Ranipur. 4. Sawinder Singh (PW-4), Jagdish Singh and Joginder Singh who were employed at the said filling station and Chaukidar Harbans Lal had been lying asleep in a room in the filling station. Four unidentified, persons entered the room and demanded keys of the cash box. One of them was armed with a kirpan, others were carrying dandas. One of the intruders hit Sawinder Singh with a dang on the left eye-brow. Thereafter the four employees were locked in the bath room and the intruders decamped with Rs. 857/- in cash. After some time Sawinder Singh and others managed to open the door of the bath room and come out. 5. Sawinder Singh reached Jugial and informed Sarpanch Kulraj Singh. He left his companions at the spot and then informed Beli Ram. When Beli Ram and Sawinder Singh were going to report the matter to the Police Station they came to know that some intruders had broken into the house of Jagdeep Singh Bhatti, inflicted injuries to him and his parents, Uttam Singh and Satwant Kaur.They also looted their household articles. 6. Sawinder Singh’s statement was recorded by SI Chanchal Singh, SHO, P.S. Shahpur Kandi at Jugial at 11 a.m. On the basis of the statement F.I.R. No. 37 was recorded at Police Station Shahpur Kandi at 11.10 a.m. under Section 458 I.P.C. 7. Jagdeep Singh Bhatti (PW-8) alongwith his wife Rimpi Bhatti (PW-7) had been lying asleep with their children. 6. Sawinder Singh’s statement was recorded by SI Chanchal Singh, SHO, P.S. Shahpur Kandi at Jugial at 11 a.m. On the basis of the statement F.I.R. No. 37 was recorded at Police Station Shahpur Kandi at 11.10 a.m. under Section 458 I.P.C. 7. Jagdeep Singh Bhatti (PW-8) alongwith his wife Rimpi Bhatti (PW-7) had been lying asleep with their children. Jagdeep Singh’s parents Uttam Singh and Satwant Kaur were also lying asleep in a separate room. At 1.30 a.m. on June 11, 2002 some thieves entered their house and inflicted injuries on Jagdeep Singh, Uttam Singh and Jaswant Kaur. The theives also robbed Jagdeep Singh of a suitcase, a briefcase, Rs.70,000/- in cash, gold ring and some other artificial ornaments. 8. Jagdeep Singh, Uttam Singh and Satwant Kaur were taken to Civil Hospital, Pathankot from where they were referred to Daya Nand Medical College, Ludhiana at 10.45 a.m. on June 11, 2002. 9. Sawinder Singh was medico legally examined at 4.35 p.m. on June 11, 2002 by Dr. Ashok Sharma (PW-3) at Civil Hospital Pathankot and was found to have the following injuries:­ 1.5 cm long horizontal stitched wound present over left eye brow. Clotted blood was present over the wound. 2. 2x.5 cm size oblique lacerated wound present over upper part of middle of right side of forehead. Clotted blood was present over the wound. 10. Uttam Singh’s death occurred 38 days later on July 19, 2002. Information of death was received by the Investigating Officer at 3.30 p.m. Investigator went to Civil Hospital, Jalandhar and conducted inquest proceedings. Thereafter on July 20, 2002 postmortem was conducted by Dr. Viney Sharma (PW-1) at Civil Hospital, Pathankot. The following injuries were found on the dead body:- 1. Healed scar size 4cm x .5 cm present over the forehead above the left eye. On dissection underlying bone showed healed fracture with blood clots present in the extra dural space. 2. Multiple old healing scar present over the back of left ear and right lower leg. In my opinion the cause of death in this case was due to multiple organ failure leading to cardio pulmonary arrest. 11. Thereafter no significant investigation was conducted by the police. It was only on November 14, 2002, five months after the occurrence that Chaman Lal and five others were produced in court and taken into police custody. In my opinion the cause of death in this case was due to multiple organ failure leading to cardio pulmonary arrest. 11. Thereafter no significant investigation was conducted by the police. It was only on November 14, 2002, five months after the occurrence that Chaman Lal and five others were produced in court and taken into police custody. Chaman Lal was interrogated by S.l. Naresh Kumar (PW­12) and he made a disclosure statement that he had concealed a stereo, a blanket, two khes, a lady’s purse, an attache case containing artificial jewellery consisting of necklace, chain and tikka under a simbal tree in Ranipur. His statement was recorded in the presence of ASI Sharam Singh and Inderjit Singh (PW-9). The other accused were also interrogated and they stated that they had handed over their share of the looted property to Chaman Lal. 12. Chaman Lal led the police party to the place where the property was hidden by him. The police recovered a plastic bag which contained a stereo, an emergency light, an attache case, a lady’s purse, a blanket and two khes. The attache case on opening was found packed with artificial jewellery i.e. a pair of ear rings, a guluband, a chain, a necklace, a tikka, one gold ring weighing 6 grams and an other gold ring weighing 5 grams. The above articles were identified by Rimpi Bhatti and her father Inderjit Singh as belonging to her family. After completion of the investigation all the accused were sent up for trial. 13. At the trial charges were framed against the accused under Section 406 IPC and other related offences on December 4, 2004. Subsequently, charges were framed on November 18, 2005, fresh charges including offence under Section 302, 396,458,459,460,325, 411, 148, 149 I.P.C. Accused pleaded not guilty to the amended charge and claimed trial. 14. Prosecution examined Gurmit Singh Kaler (PW -1), Dr. Viney Sharma (PW-2), Dr. Ashok Sharma (PW-3), Sawinder Singh (PW-5), Parveen Sharma (PW-5), AS1 Satish Chander (PW-6), Rimpy Bhatti (PW­ 7), Jagdeep Singh Bhatti (PW-8), 1nderjit Singh (PW-9), AS1 Rajinder Singh (PW-10), C. Balkar Singh (PW-11) and SI Naresh Kumar (PW-12). The accused were examined without oath under Section 313 Cr.P.C. They denied all the circumstances appearing against them in the prosecution evidence and pleaded false implication and innocence. The accused were called upon to enter defence but they did not lead any evidence. 15. The accused were examined without oath under Section 313 Cr.P.C. They denied all the circumstances appearing against them in the prosecution evidence and pleaded false implication and innocence. The accused were called upon to enter defence but they did not lead any evidence. 15. The learned Additional Sessions Judge accepted that property of the Bhatti’s family was recovered from the possession of Chaman Lal who did not claim its ownership, there was no reason for the police to falsely plant these articles on Chaman Lal, identity of the property had been fully established by Rimpy Bhatti, she had also identified Chaman Lal as one of the assailants. Therefore, Chaman Lal was convicted under Section 148, 302, 325, 396, 459, 460 read with Section 149 of the Indian Penal Code. 16. The learned Additional Sessions judge relied upon Bachan Singh Vs. State of Punjab 1980(2) SCC 684, Machhi Singh Vs. State of Punjab 1984(2) RCR (Criminal) 412 to impose death sentence on Chaman Lal. Reference was made to Des Raj versus State of Punjab, [2007(4) LAW HERALD (P&H) 2972 (SC) ] : [2007(4) LAW HERALD (SC) 3156] : 2007(4) RCR (Criminal) 133. The learned Trial Court considered 8 aggravating circumstances to impose death sentence on Chaman Lal. The aggravating circumstances were the time of the occurrence being 2 a.m. when everyone in the house was sleeping, death of Uttam Singh, Jagdeep Singh being rendered a permanent neurology patient, Chaman Lal’s attack on a woman, victims being empty handed, the brutality of the attack, lack of respect for a woman and the absence of the motive. 17. We would like to reconsider Chaman Lal case completely uninfluenced by the findings recorded by the Trial Court. Chaman Lal has been sentenced to death and this Court is required to reappraise evidence before deciding whether or not death sentence should be confirmed. We have gone through the statements of Sawinder Singh (PW­ 4), Rimply Bhatti (PW-7), Jagdeep Singh Bhatti (PW-8) and Inderjit Singh (PW-9). Sawinder Singh has simply testified that the filling station where he was employed was robbed by four persons carrying kirpans and dandas on the night of June 10 and 11, 2002. Sawinder Singh was inflicted a dang, blow on his left eyebrow. Thereafter he and his companions were locked in a bath room and intruders robbed Rs.857/- in cash. Sawinder Singh reported the matter to the police. Sawinder Singh was inflicted a dang, blow on his left eyebrow. Thereafter he and his companions were locked in a bath room and intruders robbed Rs.857/- in cash. Sawinder Singh reported the matter to the police. To the similar effect was the corroborative statement of Sawinder Singh’s co-employee Parveen Sharma (PW-5). Neither of them testified anything against Chaman Lal. 18. The main witness in this case is Rimpy Bhatti (PW-7). She testified that she lived with her husband Jagdeep Singh Bhatti in village Jugial and had two children. On the night of June 11 at 2.00 a.m. Five/six persons entered their house and attacked Uttam Singh, Satwant Kaur and Jagdeep Singh Bhatti with sticks and iron rods. She heard shrieks and bolted the door of her room from inside. She saw through a key hole that something was wrong in the other room. She raised an alarm and her children started weeping. The intruders did try to open the door but did not succeed, thereafter they ran away from the house. 19. Rimpy Bhatti found Uttam Singh, Satwant Kaur and Jagdeep Singh lying injured and household luggage lying scattered. The injured were taken to Civil Hospital, Pathankot and then referred to Daya Nand Medical College, Ludhiana. After a month they were shifted to Sayam Hospital, Jalandhar where Uttam Singh died on July 19, 2002. Jagdeep Singh and Satwant Kaur recovered from their injuries. When they were returning home from Jalandhar Satwant Kaur met with an accident in which she also died alongwith another person. 20. Jagdeep Singh remained admitted in hospital in coma. After three months he was shifted home and later with his wife Rimpy Bhatti he moved to her parents in Kapurthala. Jagdeep Singh’s right side of the body got paralysed due to injuries and remains so till date. 21. Rimpy Bhatti had also found gold ornaments, which she receive from her parents, missing from the house. Some of the ornaments had letter "I"inscribed and one locket which belonged to her mother-in-law had letters "IJ" inscribed. Cash amount of Rs.30,000-35,000/- was also missing. She had looked through the key hole and could identify one of the assailants. At the trial Rimpy Bhatti identified Chaman Lal as one of the assailants. 22. Rimpy Bhatti joined the investigation after five months and identified the stolen articles in the Police Station. Cash amount of Rs.30,000-35,000/- was also missing. She had looked through the key hole and could identify one of the assailants. At the trial Rimpy Bhatti identified Chaman Lal as one of the assailants. 22. Rimpy Bhatti joined the investigation after five months and identified the stolen articles in the Police Station. When cross-examined she was confronted with her previous police statement in which some details of the occurrence had not been mentioned. She denied the suggestion that she was not in the house when the incident took place. She also denied that some unidentified assailants had committed the crime. Jagdeep Singh Bhatti testified that he did not remember what had happened as he had been rendered unconscious and remained in coma for 1½ months. He had come to know from his wife and relatives that some thieves had come to the house and inflicted injuries to them. He stated that he had been rendered a “neuro” patient after the attack. 23. Rimpy Bhatti’s father Inderjit Singh (PW-9) testified that on November 14, 2002 he had accompanied the Investigator when the robbed articles were recovered from the possession of Chaman Lal on the basis of his disclosure statement. The witness also testified that his daughter Rimpy Bhatti had, in his presence, identified Chaman Lal as well as five other accused. This identification was in the presence of S.I. Naresh Kumar (PW­ 12) on November 14, 2002 but not in test identification parade before a Magistrate. In addition to the above we have the identification of Chaman Lal by Rimpy Bhatti in court. She appeared as PW -7 and pointed to Chaman Lal, who was standing in the dock. 24. Two very serious crimes were committed on the night of June 10 and 11, 2002-robbery at petrol pump and house breaking in the adjoining house of Jagdeep Singh Bhatti. The police of Shahpur Kandi was informed. F.I.R. was registered but at the trial prosecution produced not evidence of investigation conducted by the police in respect of the later incident. Three persons had been injured. We do not know what injuries they had suffered because the Medical Officer who had examined them was not produced at the trial. Dr. Ashok Sharma (PW-3) of Civil Hospital, Pathankot did receive the three injured but referred them to Dayanand Medical College, Ludhiana. Medico legal evidence from Dayanand Medical College, Ludhiana was never collected. Three persons had been injured. We do not know what injuries they had suffered because the Medical Officer who had examined them was not produced at the trial. Dr. Ashok Sharma (PW-3) of Civil Hospital, Pathankot did receive the three injured but referred them to Dayanand Medical College, Ludhiana. Medico legal evidence from Dayanand Medical College, Ludhiana was never collected. No worthwhile investigation was done was done by the police for five months. If the Investigator had moved quickly and in the right direction from the start, he would certainly have been able to record the statements of Uttam Singh, Satwant Kaur before they died or at least made an attempt to do so. In the process he would have come across Rimpy Bhatti at the hospital and interrogated her about the manner in which the occurrence had taken place, asked her about the property which the family had been robbed of. It is shocking that such important investigation can be so lackluster. S.I. Naresh Kumar (PW-12) took up the investigation on November 14, 2002. Until that day nothing significant happened in the investigating process, barring the preparation of the inquest report on the dead body of Uttam Singh and its postmortem examination. 25. We also know nothing about the circumstances in which Chaman Lal and his co-accused were arrested, it would have been of some importance to know from where Chaman Lal was arrested and what was recovered from his possession at the time of his arrest. Where had he been during the period between the crime and his arrest. The prosecution case is silent on this aspect. All we know is that on November 14, 2002, Chaman Lal was in police custody. On that day Rimpy Bhatti alongwith her father Inderjit Singh had gone to Police Station, Shahpur Kandi. At the Police Station she was shown property which had been recovered from Chaman Lal and which she identified as belonging to her. The articles were not displayed, mixed with other similar articles, and she had not been asked to pick her stereo or jewellery from a mixed-up display. The identification of the property was done in a most unsatisfactory manner and cannot be accepted by us. 26. The articles were not displayed, mixed with other similar articles, and she had not been asked to pick her stereo or jewellery from a mixed-up display. The identification of the property was done in a most unsatisfactory manner and cannot be accepted by us. 26. As regards identification of the accused in court, before any such identification can be accepted we must be convinced that Rimpy Bhatti had the occasion and the opportunity to see the accused, in the dead of the night when they had broken into her house. She had been lying asleep in the adjoining room along with her children whereas her husband was asleep with his parents in a separate room. This, itself sounds a bit odd. When she sensed that something was wrong, she bolted the door from inside and saw what was happening through the key hole of the door. It is difficult to accept the identification of the accused by Rimpy Bhatti before the police on November 14, 2002 (five months later) and the identification of the accused by Rimpy Bhatti in court when she appeared as PW- 7 on September 22, 2006 (after a gap of 4 years). This is because she testified that on looking through the key hole she found that the assailants had muffled (their faces) but could identify one of them, who was Chaman Lal accused present in court. We are not convinced of the identity of the appellant as the person who had broken into Bhatti’s house alongwith 5/6 persons, inflicted injuries on three members of Bhatti’s family, and robbed the family of their valuables and cash. The occurrence had taken place in the dead of night. Accused were not previously known to the eye witness. Rimpy Bhatti had a very short time to see the occurrence and notice the features. She had seen the occurrence through a key hole. No test identification was organized by the police to require the witness to pick out the assailant from a number of other persons with similar features and built. For the above reasons we find that the evidence against Chaman Lal was insufficient for conviction. He was found in possession of many stolen articles but this fact would not connect him with the crime committed five months earlier. At best he could be said to have been in possession of some property stolen from the Bhatti house. For the above reasons we find that the evidence against Chaman Lal was insufficient for conviction. He was found in possession of many stolen articles but this fact would not connect him with the crime committed five months earlier. At best he could be said to have been in possession of some property stolen from the Bhatti house. In the absence of reliable evidence of identification, Chaman Lal could not be held to be one of the murderous robbers who had committed the crime on the night of June 10 & 11, 2002. As a result of our discussion, Criminal Appeal No. 531 DB of 2008 is allowed. Chaman Lal is acquitted of the charges framed against him. He be released forthwith, if not required in any other case. Murder Reference No.7 of 2008 is hereby declined. ----------------------