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2009 DIGILAW 621 (HP)

MALKIAT SINGH v. STATE OF H. P.

2009-07-02

DEEPAK GUPTA, V.K.AHUJA

body2009
JUDGMENT Per V.K. Ahuja , J.:-This judgment shall dispose of an appeal filed by the appellants Malkiat Singh and Vaishno Devi, through jail against the judgment of the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, dated 13.4.2006. The second appeal has been filed by appellant Jasbir Singh through jail against the said judgment passed by the learned trial Court. All the appellants have assailed the conviction and sentence imposed by the learned trial Court upon them, vide which the appellants were held guilty as under:- 2. Appellants Malkiat Singh and Vaishno Devi U/S 120-B: Life imprisonment and fine of Rs.20,000/- each. Appellant Jasbir Singh U/S 302 I.P.C.: Life imprisonment and fine of Rs.20,000/-. In case of default of payment of fine, all the appellants were to undergo simple imprisonment for one year. They were further sentenced to simple imprisonment for one year for offence under section 201 I.P.C. and fine of Rs.1,000/- each and in default of payment of fine, they were to further undergo simple imprisonment for 15 days. 3. The prosecution story in brief is that on 16.6.2004, at about 8.25 A.M., S.H.O. Police Station Jawali, was present in the area of Dhanuna in connection with the investigation of a case. Complainant Sher Singh met him and gave statement to him, which was recorded by him. In the said statement, he alleged that his younger brother Piar Singh had come on pension 5-6 years ago from BBMB Pong Dam. On 30.5.2004, the complainant had gone to the house of his brother Piar Singh to enquire about his health and at that time, his brother’s daughter-in-law Vaishno Devi, Malkiat Singh, her husband and driver Jasbir Singh were quarrelling with his brother. He further alleged that the daughter-in-law was proclaiming that they will kill him and throw him in the area of Punjab. He further alleged that his brother used to a proclaim that his daughter-in-law was having illicit relation with driver Jasbir Singh and for that reason, all these three persons had also earlier quarreled with his brother and had given him beating. He further alleged that on 31.5.2004, at about 7.30 A.M., when he came back from the Khad after taking bath, his brother Piar Singh alongwith his son, daughter and driver was standing near Tata Sumo No. HR-01E-1902 for going to some other place. He further alleged that on 31.5.2004, at about 7.30 A.M., when he came back from the Khad after taking bath, his brother Piar Singh alongwith his son, daughter and driver was standing near Tata Sumo No. HR-01E-1902 for going to some other place. He enquired from his brother as to where they were going, who told him that he was going to Talwara to take pension. Thereafter, all these persons left in the vehicle and the remaining three persons and vehicle came back in evening. He enquired from Vaishno Devi and her husband Malkiat Singh about the whereabouts of his brother who told him that he was their father and what connection he has got. On 14.6.2004 Malkiat Singh sold the said Tata Sumo and he became sure that all these persons had killed his brother and may have hidden the dead body at some place. On the previous day i.e. on 15.6.2004, he told all these facts to Kewal Singh, Up-Pradhan and was going today to Police Chowki alongwith Pradhan to make report and the police met him on the way. On this statement which was recorded on 16.6.2004, the case was registered and after investigation, the challan was filed as against all the three appellants before the Court of learned Addl. Chief Judicial Magistrate, Jawali, who committed the case to the Court of learned Session Judge, who assigned the case to the learned trial Court. The trial Court tried the appellants leading to their conviction and sentence as detailed above. 4. We have heard the learned counsel for the parties, have gone through the record of the case and have gone through the points raised during the course of arguments or the infirmities pointed out during the course of arguments, which shall be referred below while referring to the evidence led by the prosecution. 5. The submissions made by the learned counsel for the appellants were that there is no direct evidence in regard to the commission of the crime. It was submitted that the learned trial Court had relied upon the circumstantial evidence, which allegedly consists of the evidence in regard to last seen, recovery of dead body at the instance of the disclosure statement by one of the appellants and the recovery of the clothes of the deceased from the place of occurrence. It was submitted that the learned trial Court had relied upon the circumstantial evidence, which allegedly consists of the evidence in regard to last seen, recovery of dead body at the instance of the disclosure statement by one of the appellants and the recovery of the clothes of the deceased from the place of occurrence. It was submitted that the circumstantial evidence proved on record was not sufficient to prove the guilt of the appellants since the necessary chain was not there which could point out only to the guilt of the appellants. Thus it was submitted that the findings of the learned trial Court to the contrary holding the appellants guilty are liable to be reversed and as such, the appeals filed by the appellants deserve to be allowed accordingly. 6. On the other hand, the learned Deputy Advocate General for the State had supported the impugned judgment for the reasons recorded therein. 7. On appraisal of the evidence led by the prosecution, it is clear as rightly submitted by the learned counsel for the appellants that the case rests upon the circumstantial evidence only and all the circumstances relied upon by the learned trial Court have to be considered as to whether they stand proved and they conclusively establish the guilt of the appellants or not. 8. The first fact and not the circumstance proved by the prosecution was that on the day he was allegedly seen by the complainant in the company of the appellants i.e. on 31.5.2004, the deceased had gone to Talwara and had withdrawn his pension on that day. PW-18 ASI Yog Raj has stated that he presented application Ext. PW18/A to the bank Manager, who handed over him Exts. A-1 to A-3 vide Memo Ext. PW7/A in presence of witnesses which had been signed by the Manager. The said Manager has been examined as PW-20 Jai Chand Wadi who stated that an application was moved on 17.6.2004. He also stated that Piar Singh had an account in the bank and he used to draw his pension. On 31.5.2004, the deceased had withdrawn the amount of Rs.5,000/- vide form Ext. A-1, copy of the Cashier Log Book Ext. A-3, which documents were taken in possession by the police. 9. He also stated that Piar Singh had an account in the bank and he used to draw his pension. On 31.5.2004, the deceased had withdrawn the amount of Rs.5,000/- vide form Ext. A-1, copy of the Cashier Log Book Ext. A-3, which documents were taken in possession by the police. 9. The above evidence which has not been challenged during the course of arguments by the learned counsel for the appellants only proves this fact that the deceased had gone to Talwara on 31.5.2004 and had withdrawn his pension on that day. However, there is nothing on record to establish that as to whether he came alone to the bank or was accompanied by some other persons since banks are not expected to keep such a record and no other person has been examined who may have seen the deceased personally going to draw his pension. Thus, this fact in the circumstances establishes that the deceased had gone to Talwara on 31.5.2004, withdrew his pension and he was alive on 31.5.2004. 10. The first circumstance relied upon by the learned trial Court was that the deceased was lastly seen by his brother complainant PW-3 Sher Singh on 31.5.2004, at about 7.30 A.M., alongwith all the three appellants, who thereafter left in his presence in the Tata Sumo for Talwara. Thereafter, his brother was never seen. He stated that they were ready to leave at 7.30 A.M. and when he enquired from his brother, he told him that he was going to Talwara to take pension and they left in his presence but his brother never returned and he enquired from Vaishno Devi, Malkiat Singh, who told him that he was their father and he has no concern. In the complaint lodged by the complainant Sher Singh Ext. PW3/A, he had mentioned this fact very clearly. In the said report, he had also alleged that on 30.5.2004 i.e. one day prior to the last seen evidence, he had gone to the house of his brother to enquire about his health and all the three appellants were quarrelling with his brother and Vaishno Devi was proclaiming that they will kill deceased and throw him in the area of Punjab and he will not be traceable. He also alleged that his brother used to suspect illicit relations in between his daughter-in-law and driver Jasbir Singh and for this reason, his brother used to be given beatings earlier also and the appellants used to quarrel with him. It has to be seen as to how far the statement made by the complainant in regard to the last seen or the occurrence one day earlier inspires confidence and, therefore, his statement made in Court has to be considered. 11. The complainant Sher Singh has been examined as PW-3, who reiterated that he had gone to see his brother on 30.5.2004 and the accused persons were giving threats to him. In his presence accused Vaishno Devi threatened that they will kill him and will throw him in Beas river. Malkiat Singh and driver Jasbir Singh were also present there who were quarrelling with the deceased Piar Singh. He further stated that Jasbir Singh had illicit relations with Vaishno Devi. His brother used to object it and used to say that they should remove him and in his place someone be kept and Vaishno Devi was adamant to keep Jasbir Singh as driver. 12. He further stated that on the next day he returned home after taking bath at about 7.30 A.M. found that all the three accused including Piar Singh in the jeep and on enquiry, he was told that he is going to collect his pension from Talwara. Thereafter, all went in the jeep. The jeep was owned by accused Malkiat Singh but had been financed by the deceased. In the evening, all the three accused returned. However, Piar Singh did not return. They had returned in the jeep. On enquiry, the accused told that the deceased had gone to his relations. He did not name the accused who told him this fact and how he had come to their house. He further stated that Vaishno Devi and Malkiat Singh had told that they had reported the matter with the police and it is for them to search Piar Singh. In cross-examination, he stated that the villagers came to know that Piar Singh is missing when the accused lodged report in the police qua his missing. It is correct that the accused kept on enquiring from all the relations about Piar Singh. In cross-examination, he stated that the villagers came to know that Piar Singh is missing when the accused lodged report in the police qua his missing. It is correct that the accused kept on enquiring from all the relations about Piar Singh. He further stated that he does not remember that missing report was made by accused after 5-6 days. He further stated that he had told Ramesh and Kewal that the accused had given threats to the deceased in his presence but this was not so disclosed to the police prior to lodging of report by him. The said Ramesh and Kewal have not been examined to substantiate this fact that they had been told at any point of time about the threat given to the deceased. He denied the suggestion that he had not visited the house of his brother on 30.5.2004 and 31.5.2004 or all the accused persons never gave threats in his presence. His statement shows that for the first time he had informed the Pradhan about the threats or having seen the deceased with the accused persons when he went to him on 15.6.2004 i.e. one day prior to the lodging of the report on 16.6.2004. The said missing report lodged by the accused persons has been proved in evidence as Ext. PW14/A. A perusal of the same shows that a missing report was lodged with the police by Vaishno Devi, appellant, on 8.6.2004 at 7.15 A.M. In the report, she had alleged that her father-in-law used to go to Talwara to take pension and he had gone as usually on 31.5.2004 for taking pension but did not return. She enquired from the Punjab National Bank and learnt that the pension had been withdrawn by Piar Singh on 31.5.2004. She thereafter enquired from her sisters (sisters of her husband and other relatives) who informed her that her father-in-law had not visited them. She further alleged that for the last 5-6 months, her father-in-law was having some mental illness and they did not use to allow him to go alone but he left the house on 31.5.2004 at 6.00 A.M. out of his own accord and without telling them. 13. PW-4 Kewal Singh, Up-Pradhan, has stated that on 15.6.2004 Sher Singh had come to him during night and told him that his brother was missing since 15 days. 13. PW-4 Kewal Singh, Up-Pradhan, has stated that on 15.6.2004 Sher Singh had come to him during night and told him that his brother was missing since 15 days. On enquiry, Malkiat Singh who is the appellant, was not providing satisfactory reply saying that Piar Singh was his father and how he is concerned with that on account of which he had suspicion and wants to report the matter to the police. He had also stated that Sher Singh had told him that on 30.6.2004, it should be 30th May, the appellants were quarrelling with Piar Singh. On the next day, he had seen all the three accused and Piar Singh proceeding towards Talwara in the jeep. 14. From the above discussion of the evidence, two things emerge, first that the complainant visited the house of the brother on 30.5.2004, sees the appellants quarrelling with the deceased and a threat given by appellant Vaishno Devi in presence of the other accused that the deceased will be killed and thrown in some area in Punjab. The second fact which emerges from the statement of the complainant is that he again sees the deceased going with all these three persons in the jeep in the morning towards Talwara and on enquiry, he was told that the deceased was going to Talwara to take his pension. The statement of the complainant PW-3 shows that he was coming back after taking bath in the Khad when he saw the appellants and further there is nothing on record to show that the house of the deceased fall on way from Khad to the house of the complainant. There is nothing in his statement to show that any other person was present at that time. He simply stated that he had told the fact to two other persons but they had not been examined by the prosecution. The only person examined is PW-4 Kewal Singh who learnt it for the first time from the complainant after 15 days about this fact i.e. on 15.6.2004 that the deceased had gone with the appellants to Talwara in the jeep on 31.5.2004 and a threat had been given to him one day earlier. The only person examined is PW-4 Kewal Singh who learnt it for the first time from the complainant after 15 days about this fact i.e. on 15.6.2004 that the deceased had gone with the appellants to Talwara in the jeep on 31.5.2004 and a threat had been given to him one day earlier. It has to be seen as to whether the solitary statement of the complainant in this regard is sufficient to hold that the last seen evidence is reliable and can be relied upon as one of the major circumstances as against the appellants. 15. It is clear from a perusal of the statement of the complainant himself as PW-3 that the deceased was suspecting illicit relationship in between his daughter-in-law, appellant Vaishno Devi and appellant Jasbir Singh, driver and had been asking them for his removal. It is clear that the relations in between the deceased and the appellants cannot be said to be good for the reason that Malkiat Singh, his son, had not turned out his driver, namely, Jasbir Singh, even though his father suspected some illicit relations in between his daughter-in-law and Jasbir Singh, driver, one of the appellants. It is surprising that even though they were aware of the fact that the relations in between the appellants and the deceased were not good still the deceased was providing all the household expenses to his son and daughter-in-law, two of the appellants for running their household affairs. It is also in evidence that the jeep in question had been financed by the deceased. It looks surprising that the complainant PW-3 Sher Singh did not deem it necessary for all these 15 days to make a complaint to any person or Pradhan or the police that his brother had been given a threat by the appellants one day prior to his missing on 31.5.2004 and inspite of the fact that his brother had been seen by him going with the appellants in the jeep but did not return to the village and he keeps mum for the next 15 days. It looks surprising that the brother of the deceased will not make a report to the police even inspite of the fact that a threat had been given by one of the appellants in presence of others to eliminate the deceased but he still keeps mum inspite of no cordial relations in between the appellants and the deceased. All the three appellants may have a reason to eliminate the deceased since he was suspecting illicit relations in between two of the appellants, namely, his daughter-in-law and driver and had asked his son to remove him but still no such report was lodged for 15 days by the real brother of the deceased, who woke up only after 15 days to lodge the report. Moreover, it also looks surprising that the deceased who had been given a threat by one of the appellants in presence of two other appellants to eliminate him one day earlier, but inspite of the threat so serious given to him on the next day itself he agrees to go with them or is taken by the appellants to Talwara for taking pension. If he was mentally disturbed, for which there is no evidence he may have been taken by the appellants against his wish but no such evidence is on record in regard to his mental disturbance or abnormal condition. Therefore, the only conclusion that can be drawn is that inspite of having received a threat one day earlier, the deceased accompanied the appellants and the only witness who is his brother complainant PW-3, but his subsequent conduct in not reporting the matter to any person or authority for 15 days makes his version doubtful, which cannot be used as positive circumstance as against the appellants so as to hold this as one of the major circumstance pointing out to the guilt of the appellants. 16. Apart from the above, before the evidence in regard to last seen can be relied upon, the last seen evidence has to be in close proximity to the death or immediately thereafter if the deceased was found dead, it can be relied upon. According to the evidence, the deceased was missing or was last seen with the appellants on 31.5.2004 till 16.6.2004 when the skelton was recovered at the instance of one of the appellants which evidence shall be discussed below. According to the evidence, the deceased was missing or was last seen with the appellants on 31.5.2004 till 16.6.2004 when the skelton was recovered at the instance of one of the appellants which evidence shall be discussed below. There was nothing on record to show that the deceased was dead and on which date he died. There is no positive evidence on record in regard to the death of the deceased. However, we may make a reference to the statement of the Medical Officer PW-1 Dr. D.P. Swamy, who conducted the postmortem on the skelton of body of deceased Piar Singh. He stated that he conducted the postmortem on 16.6.2004 vide application submitted by the police alongwith inquest report Ext. PW1/B and Ext. PW1/C. In regard to time that lapsed between injury and death, the Medical Officer had opined that it was within five minutes and in between death and postmortem, was within 1 to 8 weeks, meaning thereby that on the date the postmortem was conducted, the deceased may have died one week earlier i.e. on 7.6.2004 or eight weeks which comes to 4th May. No definite date is there on record either in oral or medical evidence in regard to the death of the deceased. 17. Coming to the last seen evidence or how far this can be relied upon, the learned counsel for the appellant had relied upon the following decisions: 18. The decision in K.T. Palanisamy Vs. State of Tamil Nadu, (2008) 3 Supreme Court Cases 100, shows that the case rested upon circumstantial evidence and the sole circumstance was of the deceased having been last seen with the accused by the prosecution witnesses. The observations made in Paras 18 and 21 are relevant and are being reproduced below: “18. All the prosecution witnesses are related to the deceased. It is difficult for us to believe that all the witnesses saw the deceased accompanying the accused persons one after the other at different places. Therefore, chances of their deposing falsely cannot be ruled out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. 21. Therefore, chances of their deposing falsely cannot be ruled out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. 21. In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceased having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.“ 19. A reliance was placed upon a decision in Hatti Singh Vs. State of Haryana, (2007) 12 Supreme Court Cases 471. The observations made in Para-26 are relevant and are being reproduced below: “26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.” A reliance was also placed upon a decision in State of Goa Vs. Sanjay Thakran and another, (2007) 3 Supreme Court Cases 755. The observations made in Para-34 are relevant and are being reproduced below: “34. Sanjay Thakran and another, (2007) 3 Supreme Court Cases 755. The observations made in Para-34 are relevant and are being reproduced below: “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.” 20. In the present case, coming to the evidence in the light of the above case law, it is clear that the time gap in between the last seen and the recovery of the dead body is about 15/16 days and in between last seen and probable date of death also it can be one week prior to the detection of the dead body i.e. about 7.6.2004. There is no evidence to establish the intervening period as to where the deceased was and the only one witness has been examined to prove the last seen evidence, whose conduct is also not reliable keeping in view the fact that he did not lodge the report inspite of the threat given to his brother one day earlier being closely related to the deceased being his real brother and still made no report or complaint to any person or authority and kept mum for 15 days. Therefore, this evidence cannot be said to be sufficient so as to take it as major circumstance as against the appellants. 21. Next circumstance relied upon by the prosecution is in regard to the recovery of dead body at the instance of one of the appellants. 22. Coming to the evidence in regard to the above circumstance, PW-19 S.I. Surinder Thakur, the then S.H.O. and Investigating Officer, has stated that the accused were arrested at 2.30 P.M. after preliminary investigation. They were taken to Police Station for interrogation. Accused Jasbir Singh made a disclosure statement Ext. PW4/A in presence of Kewal Singh and Ramesh Singh. 22. Coming to the evidence in regard to the above circumstance, PW-19 S.I. Surinder Thakur, the then S.H.O. and Investigating Officer, has stated that the accused were arrested at 2.30 P.M. after preliminary investigation. They were taken to Police Station for interrogation. Accused Jasbir Singh made a disclosure statement Ext. PW4/A in presence of Kewal Singh and Ramesh Singh. He further stated that the accused also affixed the signature on the statement and the witnesses also affixed their signatures, which has been attested by him. He stated that the accused alongwith other police officials were taken in a vehicle accompanied by the witnesses and Photographer Shashi Pal was also joined. At the instance of the accused Jasbir they first went to Talwara Chowk and thereafter at his instance, the vehicle was taken on Kumahi Link Road. At a distance of about 4-5 K.M. accused Jasbir got vehicle stopped and led the police party to Karanpur Jungle identified the place where he had thrown the dead body after murder. The stone lying on the spot which was blood stained was also identified to have been used for murder by Malkiat Singh. In the Nallah skelton parts of the dead body and shoes Ext. P-2, Kamees P-3, Pant P-4, Tolia P-5, underwear P-6, Bundle Bidi P-7, stones Exts. P-9 to P-23 and some hair and some residue of body fats were found lying. He further stated that he got photographs snapped from the photographer who was accompanying them. The photographs are Ext. PW8/A-1 to Ext. PW8/A-20 and the negatives of which are Ext. PW8/A-21 to Ext. PW8/A-40. Panchnama of the remains of the dead body was prepared which is Ext. PW1/B and Ext. PW1/C. The articles were put in separate parcels which were sealed and were taken into possession. He further stated that skelton part included the skull which is Ext. P-1. Fard Ext. PW3/B was prepared in the presence of Kewal Singh and Ramesh Singh. Jasbir also affixed his signature on the fard Ext. PW3/B. Site plan was also prepared by him. It is clear from a perusal of this statement that out of the three accused persons, accused Jasbir Singh was alleged to have made disclosure statement Ext. PW4/A in the presence of two witnesses which led to the recovery of the human skelton consisting of the skull. 23. Coming to the statement Ext. It is clear from a perusal of this statement that out of the three accused persons, accused Jasbir Singh was alleged to have made disclosure statement Ext. PW4/A in the presence of two witnesses which led to the recovery of the human skelton consisting of the skull. 23. Coming to the statement Ext. PW4/A, a perusal of the same shows that accused Jasbir had made a statement that he can pin point the land and get recovered the dead body of Piar Singh and the stones which were used for killing of Piar Singh. A perusal of this statement shows that the accused had only stated that he can pin point the place where the dead body and stones are lying and there is no mention of the name of the place or some identity where the dead body was lying in the Khad or at how much distance from a particular place or it was lying in a Nallah or any specific place. The place is not identifiable either by name or description where the dead body is lying. Coming to the statement of Investigating Officer PW-19 Surinder Thakur referred to above, in his statement he nowhere stated as to the words used by the accused at the time of making of the statement which lead to the discovery of the body and stones. To prove a statement made under Section 27 of the Evidence, the witness is required to state the words used by the accused in making a disclosure statement, but the Investigating Officer only stated that the accused made the statement Ext.PW4/A in presence of Kewal Singh and Ramesh Singh. He did not stated that the accused made disclosure statement as to where the dead body of the deceased was lying alongwith the stones used for murder and as to from which place he can get the same recovered. It appears that the accused took them to several places and finally the dead body was recovered with the stones and other articles which were taken in possession. Therefore, this statement suffers from infirmity that the Investigating Officer has not repeated the words used by the accused at the time of making statement or what was stated by the accused in his statement. Therefore, this statement suffers from infirmity that the Investigating Officer has not repeated the words used by the accused at the time of making statement or what was stated by the accused in his statement. The mere exhibiting the document or telling names of the witnesses is not sufficient to prove a disclosure statement under Section 27 of the Evidence Act. 24. Coming to the two witnesses to the disclosure statement, the prosecution had examined only one of them Kewal Singh, Up-Pradhan, while the other witness Ramesh Singh, had not been examined by the prosecution. The reason given by the learned Public Prosecutor in giving up PW Ramesh Singh as per the statement made in Court at Page-41 of the Paper Book shows that the witness was given up being unnecessary on account of same sequence. 25. Coming to the witness examined, namely, PW-4 Kewal Singh, he has stated that the accused Jasbir was in police custody. He disclosed that he can get dead body of Piar Singh recovered and stones with which he was killed. Statement Ext. PW4/A was signed by him and Ramesh Singh and accused Jasbir also signed it. Then the accused led the police, took the police to Karanpur jungle by Kamahi Devi Road. From Talwara they went in a vehicle by Kamahi Devi. The vehicle was got stopped by accused Jasbir Singh and he led the police towards the Nallah in the jungle. Then he pointed out the human skull, blood stained stones, shirt, pant, blood stained soil, human hair, towel, underwear, one Beedi bundle and shoes which all are Exts. P-1 to P-24, which were taken in possession on the spot. He stated that he has seen the articles today, which were recovered at the spot. The photographs were also taken and a site plan was also prepared. 26. A perusal of the statement of PW-4 shows that he had stated that Jasbir had made a disclosure statement to get the dead body and stones recovered but there was no description either in the statement or in the disclosure statement or identity of the place where these were lying. Moreover, in the cross-examination, he has stated that no specific place was disclosed. The statement was signed at about 5.00 P.M. though reached at Karanpur Nallah at about 2.00 P.M. Police Station was left at about 12.00 Noon. Moreover, in the cross-examination, he has stated that no specific place was disclosed. The statement was signed at about 5.00 P.M. though reached at Karanpur Nallah at about 2.00 P.M. Police Station was left at about 12.00 Noon. His statement suggests that he signed the statement at about 5.00 P.M., though he does not say as to when it was made but they reached the Karanpur Nallah at about 2.00 P.M. i.e. before signing of the disclosure statement. They also left the Police Station at about 12.00 Noon. In case the recoveries are effected at 2.00 P.M. and then the statement is got signed at 5.00 P.M., it leads to the inference that the recoveries were already made and the statement was recorded subsequently. Thus, the statement of this witness does not materially corroborate the testimony of the Investigating Officer, who has also not repeated the words used in the statement and has not mentioned the place from which the recoveries were being effected at the instance of the accused. Therefore, the statement made by one of the accused is shrouded with suspicion and the said recovery cannot be linked with the other accused and this statement cannot be used as against two other accused persons. 27. Coming to the clothes etc. if they were identified by the brother of the deceased, namely, PW3 Sher Singh, PW-19 S.I. Surinder Thakur, has stated that Sher Singh identified Exts. P-2 to P-6 which are shoes, shirt, pant, Tolia and underwear, being that of his brother deceased Piar Singh. The said Sher Singh who was examined as PW-3, has no where stated that these clothes were of his brother or were identified by him or these have been worn by his brother at the time he left for Talwara on 31.5.2004. He simply stated that he identified shirt Ext. P-3, pant Ext. P-4, Tolia Ext. P-5 and underwear Ext. P-6, which are the same which were recovered from the spot. The fact that he identified these clothes to be of his brother is not recorded therein. However, in the recovery memo Ext. PW3/B vide which these clothes etc. were taken in possession, it was mentioned that these clothes etc. were identified by Sher Singh to be of his brother Piar Singh, which fact was never stated by the said Sher Singh in Court. However, in the recovery memo Ext. PW3/B vide which these clothes etc. were taken in possession, it was mentioned that these clothes etc. were identified by Sher Singh to be of his brother Piar Singh, which fact was never stated by the said Sher Singh in Court. Moreover, in his statement as PW-3 Sher Singh never stated in Court as to which clothes his brother was wearing at the time when he left on 31.5.2006 or the clothes recovered at the spot were the same clothes pant, shirt etc. which his brother was wearing at the time he left in the jeep on that day. 28. During the course of arguments another infirmity pointed was in regard to the time when the report was lodged by PW-3 Sher Singh or whether it was lodged at Police Post Fatehpur or at Police Station Jawali. PW-3 Sher Singh has stated that he went to Police Post Fatehpur and lodged report Ext. PW3/A on which he appended his thumb mark. He stated that the report was made at 8.00 A.M. He stated that at that time when he appended his thumb mark in Police Post Fatehpur. Kewal Singh, Up-Pradhan was also with him. The said Pradhan has been examined as PW-4 and he had gone with Ramesh to Police Station on 16.6.2004 alongwith Sher Singh. The accused persons were present at the Police Station at that time when they reached in the Police Station. He stated that they reported the matter to the police thereafter. They reached the Police Station at 7.00 A.M. He is not aware as to when all the three accused persons were taken by the police to the Police Station. His statement suggests that the report was lodged at Police Station, whereas the statement of PW-3 Sher Singh shows that they had gone to Police Post Fatehpur and lodged the report. There is nothing on record to show as to how the accused were present in the Police Station when the report was lodged by them at 7.00 A.M. There is substance in the pea raised by the learned counsel for the appellants that the report was lodged at 8.00 A.M. at Police Post Fatehpur. How the complainant and this witness were there at Police Station at 7.00 A.M. to lodge the report. 30. How the complainant and this witness were there at Police Station at 7.00 A.M. to lodge the report. 30. In regard to the time of arrest, the statement of Investigating Officer PW-19 S.I. SurinderThakur shows that he had sent the statement to Police Station through constable Sushil for registration of the case and he arrested the accused after interrogation and he gave time of arrest as 2.30 P.M. The mere fact that PW-4 Kewal Singh has stated that the accused were already present there at the time they lodged the report is not sufficient to hold that the statement of the Investigating Officer cannot be believed in this regard. There is some infirmity in regard to the time of lodging of report but the fact remains that the report was lodged at Police Post Fatehpur and it was sent to Police Station Jawali and thereafter the witness may have come to Jawali and the difference in timings is not very material of about one hour in regard to their presence at Fatehpur or Jawali Police Station. 31. Another circumstance taken by the learned trial Court into consideration and rather taken very strongly was in regard to the sale of the vehicle by the accused persons. The learned trial Court has not referred to the specific evidence in regard to the sale of the vehicle and had only drawn conclusions in Para-26 of the judgment that there is no evidence on the file to suggest that the vehicle was not workable but instead of using that vehicle, they sold it at a low price of Rs.30,000/-, which goes to show that they may have got it disposed of suspecting that incriminating evidence may be collected from the jeep. It was also observed that they disposed it of to a scrap dealer and selling of the vehicle goes to support the version of the prosecution that the accused wanted to destroy the evidence of the crime. The learned trial Court should have referred to the date of the sale and other evidence in this regard before drawing any conclusion. 32. PW-13 Constable Sushil Kumar has stated that Rajinder Kumar had produced Tata Sumo Jeep, R.C., Insurance and agreement Mark ‘A’, which were taken into possession vide seizure memo Ext. PW2/A. Ram Saroop had signed the same as a witness and Rajinder Kumar also signed. 32. PW-13 Constable Sushil Kumar has stated that Rajinder Kumar had produced Tata Sumo Jeep, R.C., Insurance and agreement Mark ‘A’, which were taken into possession vide seizure memo Ext. PW2/A. Ram Saroop had signed the same as a witness and Rajinder Kumar also signed. PW-2 Rajinder Kumar has stated that he was running a shop junk dealer at Nangal Bihala. On 13.6.2004 Jasbir Singh and Vaishno Devi present in Court visited his shop and told him they wish to sell Tata Sumo parked at Jhakwar. He inspected the vehicle, settled the terms for Rs.30,000/-, which he paid to Jasbir and Vaishno Devi and he took the vehicle to his shop. He stated that on 17.6.2004, the police came to him and he handed over the vehicle alongwith documents. He stated that he had not taken any receipt qua payment of Rs. 30,000/- but had taken an affidavit which was taken in possession by the police. There is nothing on record to show the make of the vehicle as to how many years earlier it was purchased. There is nothing on record to show that as to what was the value of the vehicle when it was sold, assessed by any expert and the learned trial Court simply held that since it was sold for Rs.30,000/-, it must have been sold to destroy the evidence. In case, there was anything on record to show that the deceased has been guilty for the offence or there were chances of some sign of murder in the vehicle, the disposal of the vehicle could have also been used as an additional circumstance. However, the vehicle had been sold on 13.6.2004, though the deceased was missing since 31.5.2004 and a report had already been lodged on 8.6.2004 by Vaishno Devi, one of the accused in regard to the missing of deceased Piar Singh after 5-6 days as has come up in evidence. 33. A perusal of the record shows that the postmortem on the skelton of the body of deceased was conducted by PW-1 Dr. D.P. Swamy on 16.6.2004. The body was allegedly identified by Jasbir Singh accused in the case. According to the report, the antemortem injuries on head exclusively alone were sufficient in ordinary course of nature to cause death. Time that elapsed between injury and death was within five minutes and death and postmortem was within 1 to 8 weeks. D.P. Swamy on 16.6.2004. The body was allegedly identified by Jasbir Singh accused in the case. According to the report, the antemortem injuries on head exclusively alone were sufficient in ordinary course of nature to cause death. Time that elapsed between injury and death was within five minutes and death and postmortem was within 1 to 8 weeks. A perusal of the record shows that DNA test was also conducted as has come up in the statement of the Medical Officer that DNA test was forwarded to C.F.L. Chandigarh but the report was not shown to him. Finger prints on the stones etc were sent for test but there is no report in this regard on record. A perusal of statement of PW-19 S.I. Surinder Thakur shows that an application was moved to Incharge Forensic Department Tanda for conducting DMNA test of skull, hair by taking sample of blood and hair of daughter of deceased but since no such favourable report to the prosecution was received, the same has not been proved on record. It is also clear from the evidence on record including the testimony of PW-19 S.I. Surinder Thakur that the deceased had given Rs. One Lakh to his daughter Sewa Devi and Rs.60,000/- has been given to brother-in-law of Malkiat Singh accused, which showed that they also owned some money to the deceased and the deceased had financed the jeep which was purchased in the name of daughter-in-law Vaishno Devi, appellant. These facts have been mentioned that all these persons may be having some motive but there is no specific evidence on record in this regard to prove the motive and the appellant nay have having the motive since the deceased was objecting to the keeping of Jasbir Singh as driver by other two accused persons inspite of his suspicion that Jasbir Singh was having illicit relations with his daughter-in-law Vaishno Devi. 34. On appraisal of the evidence led by the prosecution, it is clear that no such sufficient evidence is on record so as to hold that the guilt of the appellants stands established. The other evidence as discussed above is also not sufficient to complete the chain of circumstances leading to the one conclusion that the murder was committed by the appellants for which the evidence is lacking. The other evidence as discussed above is also not sufficient to complete the chain of circumstances leading to the one conclusion that the murder was committed by the appellants for which the evidence is lacking. Therefore, the findings of the learned trial Court holding the appellants guilty and convicting and sentencing them cannot be said to be sustainable in the eyes of law and as such, are liable to be set aside. 35. In view of the above discussion, both the appeals are allowed and the conviction and sentenceimposed by the learned trial Court upon appellants is set aside. They shall be released forthwith, if not required in any other case. Fine if realized, shall be refunded back to the appellants.