JUDGMENT Mr. Rakesh Kumar Jain, J.: - Two criminal appeals bearing CRA-D-464-DB of 2010 and CRA-D-780-DB of 2009 are being disposed of together as they arise out of order of the Trial Court dated 11.07.2009, convicting all the appellants for the offence punishable under Section 302 of the Indian Penal Code, 1860 [for short “IPC”] and sentencing them to rigorous imprisonment for life with fine of Rs.1,000/- each and in default of payment of fine, rigorous imprisonment for one month. The period already undergone by the appellants was ordered to be set off against the substantive sentence. 2. Complaint (ExPB) was lodged by Dharamvir (PW2) on the basis of which FIR (Ex.PB/2) was registered, which reads as under:- “Stated that I am residing at above address and I am doing the shop of Tea and Milk. My step brother Om Parkash, Som Nath and their sister Renu who are deaf and dumb. All of these three are residing at House No.463, Mohalla Bajrian, Ludhiana. Today, in the morning, at about 6 a.m., elder brother Om Parkash, who is doing the work of vendor, came to my house at New Shivaji Nagar and with his signals disclosed to me that last night his four friends were taking liquor in his house and at about 10.30 p.m. Night, he had gone out to take the dinner. When, at about quarter to 12, he came back to his house, then out of the above four friends, whose name he does not know, whose looks are aged 28/30 years, height 5’6", mark of injury below the left eye, healthy, was lying dead in the room and cloth was penetrated in his mouth and there were marks of strangulation on his neck. As per the disclosure of my dumb brother Om Parkash, I alongwith him went to his house at Mohalla Bajrian and saw that the man with above looks was lying dead. After leaving dumb brother Som Nath near the dead body, along with Om Parkash were going to the police station to lodge a report and you have met. My dumb brother Om Parkash does not know the names of his three friends who have fled away but can identify them on coming face to face. In this regard also, my dumb brother has disclosed through signals. Statement has been got recorded, heard and is correct. Action be taken. My dumb brother Om Parkash does not know the names of his three friends who have fled away but can identify them on coming face to face. In this regard also, my dumb brother has disclosed through signals. Statement has been got recorded, heard and is correct. Action be taken. The other friends of Om Parkash have fled away from the spot.” 3. Surjit Singh (PW5) carried out the investigation. He lifted empty tumblers, two empty bottles and one half bottle of liquor vide memo (Ex.PC) and prepared the rough site plan (Ex.PW5/A). The clothes worn by the deceased were taken into possession vide memo (Ex.PW4/B). The fingerprints of the deceased were taken vide memo (Ex.PW4/A) and also photographs (Ex.PW5/B) of the deceased. 4. The post mortem was conducted by Dr. U.S.Sooch (PW1), who proved the post mortem report (Ex.PA) and skiagram (Ex.PA/1). According to him, the following injuries were found on the dead body:- “1. A sock was found gagged into the mouth, which was taken out and sealed in a piece of cloth bearing one seal with impression LMCH. 2. A well defined ligature mark endirling all around the neck ½ inch in width. The anteriorly the ligature mark was double and was half inch apart. The surface of ligature mark was abraided and it was placed horizontally on the middle of the neck. On dissection there was subcutaneous eacchymosis and the under neath mussel were contused, the hyoid bone was fractured and thyroid cartilage was ruptured. 3. Abrasion 1-½ inch x ½ inch on the right temporal area. 4. Three abrasions ½ x ½ inch each on the right cheek. 5. Clotted blood was present in the both nostrils.” 5. The cause of death was asphyxia as a result of strangulation which was sufficient to cause death in ordinary course of nature. All the injuries were found to be ante mortem in nature. The time between injuries and the death was immediate and the time between the death and the post mortem was about 18 hours. PW1 admitted that the viscera was not sent to the Chemical Examiner although the stomach was smelling alcohol. 6. Complainant Dharamvir (PW2) stated that Om Parkash (PW3) is his step brother. They are two brothers and one sister and all of them are deaf and dumb. They are residing in House No.463, Mohalla Bajrian, Ludhiana. PW1 admitted that the viscera was not sent to the Chemical Examiner although the stomach was smelling alcohol. 6. Complainant Dharamvir (PW2) stated that Om Parkash (PW3) is his step brother. They are two brothers and one sister and all of them are deaf and dumb. They are residing in House No.463, Mohalla Bajrian, Ludhiana. Om Parkash (PW3) came to him at his House No.5509, New Shivaji Nagar, Ludhiana, at 6.00 a.m. in the morning on 24.06.2001 and told him that on the previous night, his four friends were taking liquor in his house. He went for taking meal at about 10.30 p.m. and when came back, he found one of them lying dead and the other three were absent. He went to the house of Om Parkash and found a dead person of 28/30 years of age. There were injuries on his throat and his mouth was gagged. The other brother of Om Parkash, namely, Som Nath was present in the house who was left near the dead body, he along with Om Parkash, went to inform the police, who met them at Vaishnu Devi Chowk and his statement (Ex.PB) was recorded. In his cross examination, he had stated that he himself, his two brothers and sister none of them is deaf and dumb. He went to the house of Om Parkash at 7.00 a.m.. There are eight rooms in that house. In the upper storey, there are two tenants. 7. Om Parkash appeared as PW3 and his evidence was recorded through interpreter Sh. Vimlesh Kumar Srivastava, Teacher, Red Cross, Deaf and Dumb School Sarabha Nagar, Ludhiana. He had stated that he gave his room in the year 2001-02 to the accused on rent. He identified the accused present in Court but did not know about their names. There were 4 persons in all, who were taking liquor, out of them one was 14 years of age. In his cross examination, he stated that when he gave the room on rent, he was not acquainted with the accused. The accused came to his room at 9.30 p.m. and started drinking and playing cards. He enquired from the accused about their profession and they disclosed that they are thieves. There are two rooms on the first floor and two rooms on the ground floor. He did not disclose names of the accused to the police. The accused came to his room at 9.30 p.m. and started drinking and playing cards. He enquired from the accused about their profession and they disclosed that they are thieves. There are two rooms on the first floor and two rooms on the ground floor. He did not disclose names of the accused to the police. He told about the murder of the deceased to his tenant who is residing on the upper floor of his house but he did not know his name. He also stated that he told about the murder of deceased to the said tenant at 11.00 p.m. and informed the police along with his tenant at about 6.00 a.m. He went to the police station with the said person and got recorded his statement. 8. The prosecution also examined HC Mohinder Partap (PW4), SI Surjit Singh (PW5), DSP Mukhwinder Singh (PW6), ASI Dalip Singh (PW7) and Sumit Sood (PW8). DSP Mukhwinder Singh (PW6) had stated that the names of the accused were disclosed by Salma wife of Shavi Nath in her statement recorded under Section 161 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”]. 9. After the prosecution evidence was over, all the incriminating material was put to the appellants, who pleaded their innocence and false implication in their statement recorded under Section 313 Cr.P.C. 10. Learned counsel for the appellants has argued that the learned Trial Court has committed a patent error in convicting and sentencing the appellants for the offence punishable under Section 302 of the IPC. It is submitted that the statement of Om Parkash (PW3) is highly improbable and cannot be believed because he did not disclose that out of the four persons including the deceased, one was woman also, rather he had categorically stated that there was a person who was 14 years of age but no such person had been prosecuted. It is submitted that it is highly improbable that Om Parkash (PW3) was not knowing the names of all the four persons though they were his tenants for the last so many years and were so free that they could consume liquor in his house. It is submitted that it is highly improbable that Om Parkash (PW3) was not knowing the names of all the four persons though they were his tenants for the last so many years and were so free that they could consume liquor in his house. It is further submitted that the police has recovered one empty bottle of 8 PM whisky, one empty bottle of Director Special and one empty half of Bagpiper, which according to him they had started to consume at 9.30 p.m. and when he came back at 10.40 p.m., all the aforesaid bottles were empty. He submitted that it is highly improbable that out of the four persons including one woman and one person of the 14 years of age can consume the aforesaid bottles of liquor. Moreover, no fingerprints of the appellants were taken either from the empty tumblers or from the empty bottles in order to connect their presence on the scene of the crime immediately before PW3 had left for taking his meal. He also submitted that PW3 cannot be believed because he had not disclosed the name of the tenant who was living on the first floor, who had gone with him to the police station for the purpose of registration of FIR much-less the complaint, whereas Dharamvir (PW2) has stated that he and Om Parkash (PW3) were going to the police station but they met the Investigating Officer (PW5) on the way where they got their statement (Ex.PB) recorded and did not go to the police station at all. He further submitted that the names of the appellants were disclosed for the first time by one Salma wife of Shavi Nath, which has come in the evidence of DSP Mukhwinder Singh (PW6) but said Salma has not been produced in the witness box. It is further submitted that no identification parade has been held by the police and the accused have been identified by Om Parkash (PW3) in the Court for the first time. It is also argued that PW3 came to know about the murder in his house at 10.40 p.m. in the month of June and waited till 6.00 a.m. to bring it to the notice of his brother Dharamvir (PW2) for the purpose of reporting it to the police. 11. It is also argued that PW3 came to know about the murder in his house at 10.40 p.m. in the month of June and waited till 6.00 a.m. to bring it to the notice of his brother Dharamvir (PW2) for the purpose of reporting it to the police. 11. On the other hand, learned State counsel has argued that the prosecution has completed the chain of circumstances on the basis of which the conviction order has been passed. It is submitted that PW3 was present with the accused from 9.30 p.m. to 10.30 p.m. when he left for taking his meal and when he came back, he only found the deceased and the three others persons who were playing cards with him were absent. The time period of the last seen is so short that it is for the appellants to explain as to what happened to the deceased in between that period when PW3 had left them in the room and came back after takng his dinner. 12. We have heard counsel for the parties and have perused the record and are of the considered opinion that both the appeals are meritorious and deserves to be allowed. 13. It is a well settle principal of criminal jurisprudence that hundred guilty may escape but not a single innocent person be punished and that the prosecution has to prove its case beyond all shreds of doubt. In the present case, the story propounded by the prosecution is highly improbable because Om Parkash (PW3) is the star witness of the prosecution who did not disclose the name of the accused despite the fact that they were his tenants. He categorically stated that one of the person was 14 years of age amongst the four persons, but the prosecution did not send up any such person for trial and he did not disclose that one amongst all the four persons was a woman. The natural inference is that he had no knowledge about the persons who were present or he himself was not present there at the place of occurrence. Further more, all the four persons including the deceased gathered in his room at 9.30 p.m. and started taking liquor and playing cards. At 10.30 p.m., he left the room to fetch his meals and when came back, he found the deceased strangulated and three other persons absent from the scene of occurrence. Further more, all the four persons including the deceased gathered in his room at 9.30 p.m. and started taking liquor and playing cards. At 10.30 p.m., he left the room to fetch his meals and when came back, he found the deceased strangulated and three other persons absent from the scene of occurrence. It was the foremost duty of the prosecution to prove the presence of the appellants on the scene of occurrence by a corroborative piece of evidence as PW3 has failed to disclose their names or even any physical features for the purpose of identification. The best way to find it out was taking the fingerprints of the accused from the empty tumblers and empty bottles of whisky which were taken into custody by the prosecution vide memo (Ex.PC). Had it been done so and had the fingerprints of the accused matched with the fingerprints bearing on the aforesaid tumblers and bottles, then the prosecution could have at least establish the presence of the accused at the scene of occurrence and would have given some strength to the story coined by PW3, but in the absence of such an evidence and also the name and description of the other three persons, it was a wild goose chase by the prosecution which they ended up in the statement of PW6 who had stated that the accused were named by one Salma who too has not been produced in the witness box. It is also important to mention that PW3 had witnessed the murder at 10.40 p.m. in the month of June when generally people are awake, but he did not report the matter either to the police or even to his brother (PW2) and stayed with the dead body throughout the night. He has rather stated that he brought the said occurrence to the notice of his tenant residing on the upper floor at 11.00 p.m. but neither the said tenant has been named nor examined by the prosecution. Thus, this story is also unbelievable. He has rather stated that he brought the said occurrence to the notice of his tenant residing on the upper floor at 11.00 p.m. but neither the said tenant has been named nor examined by the prosecution. Thus, this story is also unbelievable. Further more, there is a discrepancy in the statement of PW2 and PW3 as PW3 has stated that he went to the police station along with his tenant, whereas PW2 has stated that he along with PW3 had started for the police station at about 7.00 a.m., but on the way, at Vaishno Devi Chowk, SI Surjit Singh (PW5) met them and recorded his statement (Ex.PB) and they did not go to the police station at all. Moreover, it is also a mystery as to why PW3 has been describing the accused as four persons including the deceased and did not mention the presence of a woman amongst them. It is also worthwhile to mention that no test identification parade was held and the accused were identified by PW3 for the first time in the Court. 14. We do not agree with the contention of learned State counsel that PW3 has to be believed being the witness of last seen because from his testimony, which is shady and highly improbable, it appears that he was not even present with the accused when they were allegedly taking liquor and playing cards. 15. In view of the aforesaid discussion, we are satisfied that the learned Trial Court has not appreciated the evidence in its true perspective and has committed a grave error in convicting and sentencing the appellants for the offence punishable under Section 302 IPC. Hence, both the appeals are hereby allowed, order of conviction and sentence dated 11.07.2009 passed by the learned Trial Court is hereby set aside and all the appellants are hereby acquitted.