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2010 DIGILAW 1141 (PNJ)

Naibi Singh v. State Of Punjab

2010-03-10

JORA SINGH, SATISH KUMAR MITTAL

body2010
Judgment Satish Kumar Mittal, J. 1 Appellant Naibi Singh was tried by Additional Sessions Judge, Mansa on the charge under Sections 302 IPC for committing the murder of Janta Singh alias Janti. Vide judgment dated 5.8.2002, he was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine, to further undergo RI for one year. Against the said judgment, appellant Naibi Singh has filed the instant appeal. 2 In the present case, the prosecution version about committing the murder of Janta Singh alias Janti Singh aged about 25 years, by the appellant is based upon the statement made by Bhola Singh, real brother of the deceased. In his statement (Ex.PE), which was recorded by SI Harpal Singh (PW8) at 6.30 AM on 26.7.2001 in Police Station City, Mansa, he stated that they were four brothers and all were married. His brother Janta Singh alias Janti Singh was residing separately from them. He was having friendly terms with accused Naibi Singh, a resident of the village. Their wives used to go together for fetching green fodder. Naibi Singh was suspecting that his wife Pammi had illicit relations with Janta Singh alias Janti Singh. He told him many times about that and asked that his brother should break the relations with his wife, otherwise he will be killed. But, they (complainant) did not bother about it. Their (deceased and accused) friendship remained as usual. On the intervening night of 25/26.7.2001 at about 12.30/1.00 A.M., he along with his brother Jasvir Singh was going to the house of Bhola Singh son of Surjit Singh (son of his real Maasi) to sleep there and to condole the demise of Bhola Singh, who had died two days before, due to fall from the roof. When they were passing near the Dharamshala, they thought that they should get a Dollu of tea prepared from the house of his brother Janta Singh for being taken to the place where the mourners had gathered to condole the death of said Bhola Singh. While proceeding towards the house of his brother, he was ahead 8/10 karms from his brother Jasvir Singh. While proceeding towards the house of his brother, he was ahead 8/10 karms from his brother Jasvir Singh. When he reached in front of the house of his brother Janta Singh, he saw in the light through the window of the room that accused Naibi Singh was causing injuries on the face of his brother Janta Singh, who was lying on the cot, with the handle of the hand pump. At that time, nobody was present in the house as wife of his brother Janta Singh had gone to her parental village. On seeing the occurrence, he perplexed and returned back. Then Naibi Singh ran away towards western side after throwing the handle of the hand pump at the spot. He was also seen by his brother Jasvir Singh while he was running after causing injuries to Janta Singh. Thereafter, when they went in the room, they found his brother dead. He was lying on the cot and blood stained bricks were lying on the pillow side of his cot. It appeared to them that the brick blows were given on the head of the deceased. The handle of the hand pump was lying nearby the cot. Then he informed Panch Gurcharan Singh and Sarpanch Surjit Kaur, and other people about the murder. Thereafter they thought that in-laws of his brother Janta Singh be called. Then his brother Jasvir Singh was sent to in-laws of Janta Singh. They waited for him and in-laws of Janta Singh till morning, but when they did not reach, he along with Panch Gurcharan Singh and Sarpanch Surjit Kaur had come for giving information to the police. His brother had been killed by Naibi Singh due to suspicion of illicit relations with his wife. Action be taken. 3 On the basis of the aforesaid statement, formal FIR was registered on the same day against the appellant under Section 302 IPC at Police Station, City Mansa at 7.30 AM. After recording the FIR, the police party headed by SHO Harpal Singh went to the spot and Constable Bikkar Singh was sent for delivering the Special Report to the Illaqa Magistrate. The police reached the spot at about 8.00 AM. Inquest report (Ex.PD) was prepared. One handle of the hand pump (Ex.P6), stained with blood, was taken into possession vide recovery Memo Ex.PH. The police reached the spot at about 8.00 AM. Inquest report (Ex.PD) was prepared. One handle of the hand pump (Ex.P6), stained with blood, was taken into possession vide recovery Memo Ex.PH. Two blood stained bricks (Ex.P3 and Ex.P4) were also taken into possession vide recovery memo Ex.PF. Blood stained shirt, pillow and blanket (Ex.P8 to Ex.P10) were also taken into possession vide recovery memo Ex.PK. The pair of the Chappals (Ex.P5) was also taken into possession vide recovery memo Ex.PG. The blood from the spot was also lifted and kept in sealed parcel vide recovery memo Ex.PM. Blood stained plastic baan (Ex.P7) from the cot, was also taken into possession vide recovery memo Ex.PL. The cot was also taken into possession and rough site plan was prepared. The body was lifted from the spot and sent for post mortem examination. The statements of witnesses Gurcharan Singh, Panch and Surjit Kaur, Sarpanch were also recorded. 4 On the same day, i.e., 26.7.2001 at 1.20 PM, PWl-Dr. Naresh Bansal conducted the post mortem examination of the deceased. At that time, the dead body of the deceased was identified by Bhola Singh (complainant) and Gurcharan Singh, Panch. During the post mortem examination, the following three injuries were found on the body of the deceased:- "1. Badly lacerated wound measuring 11 cms. and 8 cm. in length (antero posterior) and breadth (top to bottom) respectively, present on the left side of forehead and scalp. Anterior end 1 cm above the lateral end of left eye b row and on the top placed 5 cm left lateral to midline. Clotted blood was present. On dissection, underlying tissues infilterated with blood, underlying bone fractured into multiple pieces. Brain matter and membranes lacerated and protruding from the wound. Infilteration of blood in brain matter also. 2. Lacerated wound 1.5 cm x 1 cm on left side of scalp placed 2 cm above and 1 cm in front of left ear. Clotted blood present. On dissection, underlying tissues infilterated with blood, underlying bone fractured, underlying membranes and brain matter lacerated and ecchymosed. 3. Lacerated wound 4 cm x 1 cm on the left side of scalp placed 5 cm above the upper end of left ear placed in lateral to lateral direction. Clotted blood was present. On dissection underlying tissue infilterated with blood. On dissection, underlying tissues infilterated with blood, underlying bone fractured, underlying membranes and brain matter lacerated and ecchymosed. 3. Lacerated wound 4 cm x 1 cm on the left side of scalp placed 5 cm above the upper end of left ear placed in lateral to lateral direction. Clotted blood was present. On dissection underlying tissue infilterated with blood. Underlying bone normal." 5 In the opinion of the doctor, the cause of death was due to shock and haemorrhage, as a result of the aforesaid three injuries, which were found ante-mortem in nature and were sufficient to cause death in ordinary course of nature. The probable time that elapsed between injuries and death was opined immediate to few hours and between death and post mortem was within 24 hours. Subsequently, during investigation, an opinion (Ex.PC/1) was taken from the Investigating Officer while showing the handle of the hand pump (Ex.P6) that the injuries on the body of the deceased could have been caused by the said weapon. 6 On 28.7.2001, the accused was arrested. On his disclosure statement (Ex.PO), blood stained shirt and Pajama, which the accused was wearing at the time of commission of the offence, were taken into possession from the room of his house vide recovery memo Ex.PP. During investigation, all the blood stained articles recovered from the spot as well as shirt and Pajama, which were recovered vide recovery memo Ex.PP, were sent for chemical examination. The Forensic Science Laboratory vide its report (Ex.PX) found human blood on all these articles. 7 It is admitted case that during investigation, no attempt was made by the prosecution to get DNA test conducted with regard to the blood lifted from the spot and the blood found on the clothes of the accused, which were recovered at his instance vide recovery memo Ex.PP. 8 After completion of the investigation, the challan was presented against the accused. He was charge-sheeted under Section 302 IPC to which he pleaded not guilty and claimed trial. 9 In support of its case, the prosecution examined eight witnesses, including PWl-Dr. 8 After completion of the investigation, the challan was presented against the accused. He was charge-sheeted under Section 302 IPC to which he pleaded not guilty and claimed trial. 9 In support of its case, the prosecution examined eight witnesses, including PWl-Dr. Naresh Bansal, who conducted the post mortem examination on the dead body of Janta Singh; PW2-Bhola Singh (complainant); PW3-Jasvir Singh, brother of the complainant, who was accompanying with the complainant at the time of the occurrence; PW4- Constable Mewa Singh, who deposited the case property with the Forensic Science Laboratory, Chandigarh; PW5-ASI Pritpal Singh, who deposed about the conduction of post mortem examination on the dead body and handing over of the parcel containing clothes of the deceased to Harpal Singh, Inspector; PW6-HC Darshan Singh, who on 26.7.2001 deposited the case property, i.e. blood stained clothes, pillow, blanket, blood stained shirt, two parcels of the blood stained bricks, one blood stained handle of the hand hump, one pair of blood stained nylon chappal, one parcel sealed by the doctor, one parcel of the blood stained Numar cut piece and on 28.7.2001 one parcel of blood stained clothes of the accused, shirt, pajama, in intact condition, in the Malkhana; PW7-Constable Bikkar Singh, who handed over the Special Reports to the Illaqa Magistrate; and PW8- Inspector Harpal Singh, Investigating Officer. 10 The prosecution did not examine Surjit Kaur, Sarpanch and given up another witness Gurcharan Singh, Panch. No person from the family of Bhola Singh son of Surjit Singh (who was stated to have died two days prior to the occurrence and to whose house both the eyewitnesses were going when they had seen the occurrence), has been examined by the prosecution. In this case, except the aforesaid two eyewitnesses, i.e., PW2- Bhola Singh (complainant) and PW3- Jasvir Singh, and the police witnesses, no other independent witness was examined by the prosecution in support of its case. 11 After closing of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which he claimed innocence and stated that he was falsely implicated by the complainant and his brother Jasvir Singh as they were not happy with the cordial relations between him and the deceased. However, in defence, the appellant did not lead any evidence. However, in defence, the appellant did not lead any evidence. 12 The trial Court after relying upon the testimony of both the eyewitnesses and the report of the FSL and other connected evidence, convicted the appellant for the offence under Section 302 IPC and sentenced him, as indicated above. Against the said judgment, the instant appeal has been filed. 13 Learned counsel for the appellant raised the following arguments :- (a) That there was an unexplained delay in lodging the FIR and by taking benefit of the said delay a false story was concocted and both the eyewitnesses were planted. According to the learned counsel, it was a case of blind murder which was committed in the night, and nobody had seen the occurrence. But subsequently a false story was concocted and both the eyewitnesses, who had actually not seen the occurrence, were made the eyewitnesses. (b) The presence of both PW2-Bhola Singh and PW3-Jasvir Singh at the time of the alleged occurrence was highly doubtful. There was no occasion for them to be present at that late night in front of the house of the deceased. Even the version given by them before the Court is contrary to the normal human conduct and is highly improbable which cannot be relied upon. (c) That two independent witnesses, namely, Surjit Kaur, Sarpanch and Gurcharan Singh, Panch, who were immediately called by the complainant after seeing the occurrence and remained present at the place of the occurrence for more than three hours and then accompanied the complainant to Police Station for registration of the case, and farther, who subsequently remained present through the police proceedings, have not been examined by the prosecution without any valid reason. Gurcharan Singh, Panch has been given up without any reason. Surjit Kaur, Sarpanch, though cited as a witness, has not been examined without any justification. According to the learned counsel, only these two witnesses could have proved the presence of two eyewitnesses (PW2 and PW3) at the time of the occurrence, at night. (d) That both the eyewitnesses, i.e. PW2- Bhola Singh and PW3- Jasvir Singh are the real brothers of the deceased and were highly interested witnesses. Their testimony has not been corroborated by any other independent witnesses. Therefore, it is not safe to convict the appellant while relying upon the testimony of such witnesses, which is full of contradictions and highly improbable. Their testimony has not been corroborated by any other independent witnesses. Therefore, it is not safe to convict the appellant while relying upon the testimony of such witnesses, which is full of contradictions and highly improbable. (e) That the prosecution did not lead any documentary evidence to prove that two days prior to the occurrence, Bhola Singh son of Surjit Singh (son of Maasi of the complainant) had died, and that the eye- witnesses had come to the house of Bhola Singh in order to mourn his death. (f) That the prosecution did not make any attempt to get the DNA test of the bloods with regard to recovery of shirt and Pajama from the house of the appellant with the blood stained clothes of the deceased recovered at the spot and during the post mortem examination. FSL report, Ex.PX placed on record by the prosecution, does not establish that the blood group found on the clothes of the accused was tallying with the blood group of the deceased found on the clothes of the deceased. The said report even does not establish that the said blood was of the deceased. (g) That the. prosecution has failed to prove the motive of the crime. The alleged motive of illicit relation is doubtful as both the eyewitnesses have categorically stated that the accused and the deceased were maintaining good relations till the date of occurrence. They were meeting and eating together. 14 On the basis of the aforesaid arguments, learned counsel for the appellant argued that in the instant case the prosecution has failed to prove the alleged guilt against the appellant beyond a shadow of reasonable doubt, therefore, the judgment of the trial Court convicting the appellant for the offence under Section 302 IPC and sentencing him for life imprisonment, is liable to be set aside. 15 On the other hand, learned counsel for the State while referring to the reasoning given by the trial Court, supported the judgment of the trial Court and submitted that keeping in view the fact that the prosecution has fully established its case beyond reasonable doubt against the appellant, the judgment of the trial Court does not require any interference. 16 We have heard the arguments of the learned counsel for both the sides and have gone through the record of the case. 16 We have heard the arguments of the learned counsel for both the sides and have gone through the record of the case. 17 From the medical evidence on the record, i.e., post-mortem report (Ex.PA) which has been duly proved by PWl-Dr. Naresh Bansal, the prosecution has established the homicidal death of Janta Singh. According to PWl-Dr. Naresh Bansal, three injuries were noticed by him on the body of the deceased at the time of post mortem examination, which were antemortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was immediate to few hours and between death and post mortem was within 24 hours. All the injuries were lacerated wounds existing on left side of forehead and skull. In the opinion of the doctor, these injuries could have been caused by the bricks or by the iron handle of the hand pump. Though from the medical evidence the homicidal death of Janta Singh has been proved, but it has not been exactly proved at what time the death of Janta Singh had taken place. 18 Now the question arises, who had caused the aforesaid injuries to the deceased. According to the prosecution, PW2-Bhola Singh (complainant) and PW3-Jasvir Singh had seen the appellant causing injuries to the deceased and thereafter running away from the spot. On the other hand, it is the argument of the learned counsel for the appellant that it was a case of blind murder. Nobody had seen any one causing injuries to the deceased. Both the eyewitnesses had not seen the occurrence and they were planted subsequently when in the morning of 26.7.2001 the death of Janta Singh was noticed. 19 The entire case of the prosecution rests upon the testimonies of two eyewitnesses, i.e. PW2-Bhola Singh and PW3-Jasvir Singh. Undisputedly, these witnesses are real brothers of the deceased. Therefore, they are highly interested witnesses. It is well settled that the testimony of such a witness cannot be discarded only on the ground that he was the relative of the deceased. In case of related witness, the Court is required to scrutinize his testimony with great care and caution. There is also no hard and fast rule that the evidence of interested witness cannot be accepted in absence of independent corroboration in material particulars. In case of related witness, the Court is required to scrutinize his testimony with great care and caution. There is also no hard and fast rule that the evidence of interested witness cannot be accepted in absence of independent corroboration in material particulars. However, the Court while scrutinizing the testimony of such witnesses with great care and caution, may also look for independent corroboration to the version of such witness as a matter of prudence. 20 Before we closely scrutinize the testimony of these two eyewitnesses, we would like to consider the contention of the learned counsel for the appellant regarding delay in lodging the FIR. As per the statement of the complainant Bhola Singh (PW2), he had seen the alleged occurrence while standing in front of the house of the deceased at 12.30/1.00 AM in the night. After seeing the occurrence, he went to the house of Gurcharan Singh, Panch and Surjit Kaur, Sarpanch. Thereafter they decided to call the in-laws of the deceased and sent PW3-Jasvir Singh to bring them. Then they waited for coming of the inlaws of the deceased. But when they did not come till 5.00 AM, they went to Police Station on foot where they reached at 6.30 AM and thereafter his statement was recorded, on the basis of which formal FIR was registered at 7.30 AM and Special Report was sent at 10.30 AM. It has come on record that the distance between the place of occurrence and Police Station was 2-1/2 Kms and between Police Station and Court was 2-1/2 Kms. It has further come in the statement of PW3- Jasvir Singh that he could not return from the in-laws house of the deceased before cremation which took place in the evening. It does not stand to reason that immediately after seeing the occurrence why the complainant did not report the matter to the police in the night itself when the Police Station was situated only 2-1/2 Kms. from the place of occurrence. The only explanation given by PW2-Bhola Singh is that firstly he informed Panch Gurcharan Singh and Sarpanch Surjit Kaur, and then they thought it better to first call the inlaws of the deceased from their village. For that purpose they sent PW3-.lasvir Singh. Thereafter, they waited for the in-laws of the deceased to come first. When they did not come, they went to Police Station for lodging the complaint. For that purpose they sent PW3-.lasvir Singh. Thereafter, they waited for the in-laws of the deceased to come first. When they did not come, they went to Police Station for lodging the complaint. This explanation given by PW2 does not inspire any confidence. 21 The second important factor, which comes from the statement of this witness (PW2 Bhola Singh), is that they started from the place of occurrence to the Police Station at 5.00 AM on foot and they reached there at 6.30 AM when the distance between the place of occurrence and Police Station was hardly 2-1/2 Kms. It also does not stand to reason why one and half hour was taken in reaching the Police Station. When the statement was recorded by the complainant at 6.30 AM in the Police Station, there was no reason for recording the FIR at 7.30 AM. In the police proceedings (Ex.PE/1), it has been recorded by SI Harpal Singh (PW8) that after endorsing the statement of the complainant a case was registered against the appellant and Special Reports were being sent to the higher officers through Constable Bikkar Singh. Constable Bikkar Singh appeared in the Court as PW7. He has proved his affidavit Ex.PT in which he had stated that SHO Harpal Singh (PW8) had handed over to him the Special Report to be delivered to the Illaqa Magistrate, but on the way he suddenly felt an attack and became unconscious, and one shopkeeper lifted him and put him lied in his shop and gave the water. Then he regained consciousness and thereafter at 10.30 AM he delivered the Special Report to the Illaqa Magistrate. In the cross-examination this witness stated that he did not know the name of the shopkeeper who had served him water nor could he tell the shop near which he had fits. The delay of three hours in delivering the Special Report to the Illaqa Magistrate whose office was situated only at a distance of 2-1/2 Kms., has not been explained satisfactorily by the prosecution. Therefore, after closely scrutinizing the evidence on this aspect, we have come to the conclusion that there was a considerable delay in lodging the FIR which has not been explained by the prosecution. 22 In light of the above facts, we have closely scrutinized the testimonies given by PW2-Bhola Singh and PW3-Jasvir Singh. Therefore, after closely scrutinizing the evidence on this aspect, we have come to the conclusion that there was a considerable delay in lodging the FIR which has not been explained by the prosecution. 22 In light of the above facts, we have closely scrutinized the testimonies given by PW2-Bhola Singh and PW3-Jasvir Singh. While assessing the evidence of the eyewitnesses, the Court must adhere to two principles, firstly, where in the circumstances of a case it was possible for eyewitness to be present at the scene and secondly there was anything inherently improbable or unreliable in his statement. Firstly, we will examine whether there was a possibility of both the eyewitnesses to be present at the scene when the alleged occurrence had taken place. As per the statement of PW2-Bhola Singh (complainant), on the intervening night of 25/26.7.2001 at about 12.30/1.00 AM, he and his brother Jasvir Singh were going to the house of Bhola Singh son of Surjit Singh (real son of his Maasi), who had died two days before, in order to condole the death and to sleep in the house of Bhola Singh. When they reached near Dharamshala, then they thought it would be better to get prepared a Dollu of the tea from the house of his brother Janta Singh for being taken to the house of Bhola Singh where the people had gathered to mourn the death. It has come in evidence that the house of his brother Janta Singh was not on the way. Rather, it was on a different side. In order to cover up that, the witness stated that they thought to get the Dollu of tea prepared from the house of Janta Singh (deceased) for serving the same to the persons collected for condoling the death in the houge of Bhola Singh. This version given by the complainant does not inspire any confidence. Normally, in this region, the deaths are not condoled in the night. If the complainant and his brother Jasvir Singh were going to sleep at the house of Bhola Singh, then 12.30/1.00 AM was not the right time. They could have gone to sleep between 9.00-10.00 PM. This version given by the complainant does not inspire any confidence. Normally, in this region, the deaths are not condoled in the night. If the complainant and his brother Jasvir Singh were going to sleep at the house of Bhola Singh, then 12.30/1.00 AM was not the right time. They could have gone to sleep between 9.00-10.00 PM. Secondly, PW3-Jasvir Singh stated that earlier they were present in the house of Bhola Singh and at 11.00 PM they came back to their house in order to take meal and thereafter at 12.30/1.00 AM they were going again to the house of Bhola Singh to sleep. This version has not been given by PW2-Bhola Singh. This is a major contradiction in their statement which clearly indicates that both the eyewitnesses were not present at the place of occurrence at 12.30/1.00 AM in the night. 23 There is another evidence which indicates to this effect. PW3-Jasvir Singh in his statement has stated that when he was asked to inform the in-laws of the deceased, he went to inform them. He returned in the evening on scooter, but prior to that he could not attend the cremation of the deceased because by that time the dead body of Janta Singh was cremated. From this, it appears that from the day of occurrence, this witness was not present in the village otherwise therewas no reason why he did not attend the cremation of the deceased when the in-laws of the deceased, including his wife attended the cremation, though according to the evidence, they came on the rehra to the village. 24 Thirdly, the presence of these witnesses at the spot could have been proved by Gurcharan Singh, Panch and Surjit Kaur, Sarpanch. It is the version of the two eyewitnesses (PW2 and PW3) that after seeing the alleged occurrence they went to the house of Gurcharan Singh, Panch and Surjit Kaur, Sarpanch, and thereafter they thought it better to inform the in-laws of the deceased and for that purpose PW3-Jasvir Singh was sent to inform them. Gurcharan Singh, Panch and Surjit Kaur, Sarpanch remained with the complainant for four hours and in the morning they went with the complainant in the Police Station for registration of a case. In the inquest proceedings their presence has been recorded, but the prosecution has not examined both the witnesses. Gurcharan Singh, Panch and Surjit Kaur, Sarpanch remained with the complainant for four hours and in the morning they went with the complainant in the Police Station for registration of a case. In the inquest proceedings their presence has been recorded, but the prosecution has not examined both the witnesses. Gurcharan Singh, Panch was given up without any reason and Surjit Kaur, Sarpanch was not examined without any justification. Thus, except the statements of these two persons that they were present at the place of occurrence, there is no corroborative evidence to prove that these two persons were actually present at the time of the occurrence. Therefore, in our opinion, the presence of both the eyewitnesses at the spot was highly doubtful. 25 On further scrutiny of the testimonies of both the eyewitnesses, we have come to the conclusion that the version given by these witnesses is also highly improbable and unreliable. In his initial statement, PW2 Bhola Singh stated that when he reached in front of the house of his brother Janta Singh, he saw through the window of the room that accused Naibi Singh was causing injuries on the face of his brother Janta Singh, who was lying on the cot, with the handle of the hand pump. At that time, he was ahead 8/10 karms from his brother Jasvir Singh. He had not seen the occurrence but he had seen the accused running away from the spot, whereas PW3-Jasvir Singh while appearing in the Court has given the full description that he had seen the accused causing injuries to his brother Janta Singh. He has given detailed description in which the injuries were caused. This is another major contradiction in their statements which has not been explained. 26 Secondly, in the statement before the Court, PW2-Bhola Singh stated that after causing the injuries to the deceased, the accused ran through the house of Balbir Singh. He climbed up the staircase and had gone on the roof of the house of Balbir Singh from where he had jumped down and ran away from the spot. They removed the plank of door of the house of the deceased to have access into the house. He stated that he disclosed this fact to the police but in his initial statement (Ex.PE) no such fact was stated. They removed the plank of door of the house of the deceased to have access into the house. He stated that he disclosed this fact to the police but in his initial statement (Ex.PE) no such fact was stated. From these evidence, it appears that both the eyewitnesses were not present at the place of occurrence and they had not seen the occurrence from their own eyes. When it has come during the police investigation that the dpor of the house of the deceased was bolted from inside, then to explain the said fact, the eyewitness (PW2) has stated in the Court that accused had climbed the staircase and had gone on the roof of the house of his neighbourer Balbir Singh from where he jumped down and ran away. It has also been stated that they had entered into the house of the deceased by removing the plank of the door of his house. The eyewitness made this improvement in the Court with intention to cover up the fact that the dead body was lying in the house which was bolted from inside. Therefore, this version given by the eyewitness further creates doubt in the mind of the Court. 27 There is yet another important factor which also indicates that there was no probability of both these eyewitnesses to be present at the spot. According to the testimony of both the eyewitnesses, on the day of the occurrence in the night they were going to the house of Bhola Singh son of Surjit Singh to condole the death and to sleep there. In order to establish that Bhola Singh had died two days earlier, the prosecution is relying upon the affidavit (Ex.PT) of Constable Bikkar Singh wherein it has been stated that on 31.7.2001 Chowkidar Sarabjit Singh got recorded an entry regarding death of Bhola Singh on 24.7.2001 which he had entered at serial No. 7. In our opinion, this evidence is not sufficient to establish that Bhola Singh had died on 24.7.2001. Neither the Chowkidar nor any entry from the Birth and Death Register has been produced. Therefore, when the factum of the death of Bhola Singh on 24.7.2001 has not been proved, then what was the occasion for both the eyewitnesses to go to the house of Bhola Singh to mourn the death and to sleep there. Neither the Chowkidar nor any entry from the Birth and Death Register has been produced. Therefore, when the factum of the death of Bhola Singh on 24.7.2001 has not been proved, then what was the occasion for both the eyewitnesses to go to the house of Bhola Singh to mourn the death and to sleep there. 28 After the arrest of the accused, on his disclosure statement, the blood stained shirt and pajama were got recovered from the room of his house vide recovery memo Ex.PP. These articles were sent to Forensic Science Laboratory for comparison of the blood found on the pillow, blanket, shirt, pajama, bricks, hand pump handle, pair of Chappals and plastic baan. As per the FSL report (Ex.PY), human blood was found on all these articles, but there is no link evidence that the blood which was found on the clothes of the accused was of the same group as was found on the clothes of the deceased. The police could have got conducted the DNA test, but the Investigating Officer while appearing as PW8 did not disclose any reason for not conducting the DNA test. He has simply stated that the DNA test was not got conducted. Thus, in our opinion, the prosecution has also failed to prove the link evidence. 29 Another question for consideration is whether the prosecution has established the alleged motive for committing the crime. As per the prosecution version, accused Naibi Singh was suspecting that his wife Pammi was having illicit relations with deceased Janta Singh. Both the eyewitnesses, who are brothers of the deceased, have stated that accused Naibi Singh had complained and told them to restrain their brother Janta Singh from maintaining such relations, otherwise he will be killed. But, in their cross- examination, both the eyewitnesses had stated that even after the aforesaid warning given by the accused to them, both the accused and the deceased continued maintaining their friendship and were frequently meeting and eating together. If that was the position, it is highly improbable that a person who is suspecting another person having illicit relations with his wife, will maintain the relations with him and share his food with him. Therefore, in our opinion, the alleged motive of the crime does not inspire any confidence. If that was the position, it is highly improbable that a person who is suspecting another person having illicit relations with his wife, will maintain the relations with him and share his food with him. Therefore, in our opinion, the alleged motive of the crime does not inspire any confidence. 30 While taking into consideration all the factors and coming to the conclusion that the testimonies of both the eyewitnesses are not trustworthy and reliable, we are of the opinion that the prosecution has failed to prove the charges against the appellant beyond a reasonable doubt. 31 Hence, the appeal is allowed and the impugned judgment of conviction and order of sentence are set aside and the appellant is acquitted of the charges. The appellant, who is in custody, be set at liberty forthwith, if not required in any other case. Appeal alloyed.