JUDGMENT Mr. Rakesh Kumar Jain, J.: - Two criminal appeals bearing CRA-D-1052-DB of 2009 and CRA-D-40-DB of 2010 are being disposed of together as they arise out of order of the Trial Court dated 29.10.209/05.11.2009, convicting all the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 [for short “IPC”] and sentencing them to rigorous imprisonment for life with fine of Rs.3,000/- each and in default of payment of fine, rigorous imprisonment for three months. The period already undergone by the appellants was ordered to be set off against their substantive sentence. 2. The FIR (Ex.P2) was registered by Surjit Singh (PW9) son of Zile Singh which reads as under:- “Stated that I am resident of aforesaid address and do the work of agriculture. I and my brother Naresh Kumar are married and my younger brother deceased Angrej Singh was unmarried. On the interring night of 11/12.06.2008, my brother Angrej Singh was not returned to home. On 12.06.2008, at about 8.30 A.M., we have received an information that the dead body of Angrej Singh lying in ditches situated little ahead of village Salaru on Indri Road. Upon this information, I and my brother Naresh Kumar along with 8-10 persons reached at the spot. Dead body of my brother Angrej Singh was found lying face downward in the ditches situated on the road. When we turned the body of Angrej Singh, we found that his left arm was fractured and there was a deep wound with sharp edged weapon in the right side of his armpit, there were bluish marks on the back and ribs of the both the sides and buttons of his shirt of front side were broken. At that spot, some one informed me that some one has murdered my brother. Harpal Singh ASI, Police Post Ramba got conducted the post mortem of the dead body from Govt. Hospital, Karnal presuming it is a case of accident. At that spot, some one informed me that some one has murdered my brother. Harpal Singh ASI, Police Post Ramba got conducted the post mortem of the dead body from Govt. Hospital, Karnal presuming it is a case of accident. After conducting the last rites of the dead body, I made an inquiry in the village at my own and came to know Parkash s/o Devi Singh, Pawan Kumar s/o Pala Ram, Narinder Kumar s/o Surta Ram, caste Jogi, and Naresh Kumar s/o Tek Chand, caste Jat, resident of the same village had served liquor to my brother Angrej Singh on that night upto 11/12 PM in the Kariyana shop of Parkash, Ramesh Kumar son of Shamsher Singh, caste Jat, r/o same village had seen them to take liquor. I am fully confident that Parkash, Pawan, Narinder Kumar and Naresh Kumar abovesaid served liquor to Angrej Singh in village with the intention to kill him. After serving liquor to him they took him to village Salaru when he was in influence of liquor and gave beating to him and after killing him they throw him in to the ditches near the road. The reason of enmity is that about 15/20 days ago an altercation took place between Narinder Kumar and my brother Angrej Singh. Due to this enmity, the aforesaid persons with mutual consent killed my brother Angrej Singh. The legal action may be taken against aforesaid. Statement got recorded, heard, which is correct.” 3. Investigation was carried out by Inspector/SHO Ashok Kumar (PW14) who prepared the inquest report Ex.P19 and made a request (Ex.P21) to the SMO, General Hospital, Karnal, for conducting post mortem. 4. Dr. Amritpal Kaur (PW12) along with Dr. R.K.Mittal conducted post mortem on 12.06.2008 at 4.10 P.M. and found the following injuries on the person of the deceased:- “1. A lacerated wound 7cm x 2cm on the anterior aspect of right side of chest. 2. A lacerated wound 5-½ cm x 2-½ cm on the lateral aspect of right elbow joint. 3. Two lacerated wound 2-½ cm x 2 cm and 1cm x 1 cm under medial aspect of right elbow joint. 4. Fracture in right forearm. 5. Abrasion on right side of abdomen and chest 34cm x 22cm. 6. Bleeding from nose present. 7. Contusiv bruises on the left side of back 32cm x 19 cm. 8. 3. Two lacerated wound 2-½ cm x 2 cm and 1cm x 1 cm under medial aspect of right elbow joint. 4. Fracture in right forearm. 5. Abrasion on right side of abdomen and chest 34cm x 22cm. 6. Bleeding from nose present. 7. Contusiv bruises on the left side of back 32cm x 19 cm. 8. Contusiv bruises 10cm x 4cm on upper back and left scapular region. 9. Contusiv bruises 4cm x 2cm on righty scapula. 10. Abrasion measuring 7cm x 2cm on the lateral side of right knee joint. 5. It was also observed that the deceased was having fracture of 2, 3, 4, 5 ribs on right side and all ribs on left side. Right and left lungs were ruptured. Liver, spleen and left kidney were also found ruptured. The cause of death was assigned to haemorrhage and shock due to injuries to the vital organs. PW12 had stated in her crossexamination that all injuries mentioned in the PMR caused on right and left side of the deceased could be caused due to vehicular accident and the possibility of bleeding from nose also due to motor vehicle accident was not ruled out. 6. The prosecution examined ASI Lila Ram (PW1) who recorded formal FIR, HC Sultan Singh No.1000 (PW2) who was member of team of investigation on 16.06.2008 when two white buttons were recovered from the place of occurrence and were taken in to possession vide recovery memo Ex.P4, Const. 6. The prosecution examined ASI Lila Ram (PW1) who recorded formal FIR, HC Sultan Singh No.1000 (PW2) who was member of team of investigation on 16.06.2008 when two white buttons were recovered from the place of occurrence and were taken in to possession vide recovery memo Ex.P4, Const. Suresh Kumar No.1183 (PW3) who had delivered special report to the Illaqa Magistrate and to the Senior Police Officers, ASI Om Kumar No.556 (PW4) who tendered his affidavit (Ex.P5), Prahlad Bhagat (PW5) who had prepared the scaled site plan (Ex.P6), Ramesh Singh son of Shamsher Singh (PW6) who alleged to have seen the deceased in the company of the appellants on 11.06.2008 at about 11.00 P.M. and presented as a witness of the last seen, Ramesh Singh son of Naresh Kumar (PW7) who happens to be the brother of the deceased and had witnessed the recovery of two buttons of the shirt on 16.06.2008, Sewa Ram (PW8) who alleged to have seen four persons near the place of occurrence at about 2.30 A.M. on 11/12.06.2008, Surjit Singh (PW9) who is author of the FIR and brother of the deceased, Surajmal Ex-Sarpanch (PW10) who is stated to be the witness of the disclosure statement, ASI Harpal Singh (PW11) who initially went to the place of occurrence on 12.06.2008 and got the dead body recovered, Dr. Amritpal Kaur (PW12) who had conducted post-mortem on the dead body of the deceased, Manjeet Kumar (PW13) who had taken photographs of the dead body and Inspector/SHO Ashok Kumar (PW14) who had investigated the matter. 7. After the evidence of the prosecution was over, the entire incriminating evidence was put by the Court to the appellants while recording their statements under Section 313 Cr.P.C. However, the appellants denied their involvement and alleged their false implication, but they did not lead any evidence in their defence. 8. Learned counsel for the appellants have argued that it is a case of blind murder and conviction of the appellants has been based upon circumstantial evidence. 8. Learned counsel for the appellants have argued that it is a case of blind murder and conviction of the appellants has been based upon circumstantial evidence. It is submitted that the statement of Ramesh Singh (PW6) cannot be believed who is alleged to have seen the appellants in the company of the deceased on 11.06.2008 at about 11.00 P.M. while they were consuming liquor inside the shop of Parkash, firstly, because it has not come in the evidence as to when he disclosed the aforesaid fact to Surjit Singh (PW9) and when did he leave for Uttar Pradesh because he has stated that he came back to his house on 14.06.2008 from Uttar Pradesh and remained in village from 14.06.2008 to 18.06.2008 but made the statement to police on 19.06.2008. He has further submitted that PW6 is closely related to the deceased as according to him, Thambu Ram was his grand-father who was having four sons, namely, Zile Singh, Shamsher Singh, Dilawar Singh and Tara Chand and he is the son of Shamsher Singh, whereas the deceased was the son of Zile Singh. He has also stated that his mother and the mother of the deceased were real sisters. It is, thus, submitted that he has been introduced by the prosecution in this case in order to fill up the lacuna in the chain of circumstantial evidence. 9. Learned counsel for the appellants have further argued that the statement of Sewa Ram (PW8) is also not believable because he is alleged to have seen four persons coming out of the ditches towards the road side at about 2.30 A.M. on 11/12.06.2008. He had also seen one moped parked on the road side. It is submitted that he was posted in the office of SDO, UHBVNL at Indri. During June, 2008, his working hours were 9.00 AM to 5.00 PM and he used to go to his place of posting from his village Kalsora. He attended his office on 11.06.2008 in between 9.00 AM to 5.00 PM. It is not clarified by him as to what he was doing at village Naru Kheri at about 2.30 AM on 11/12.06.2008. It is also submitted that this witness had admitted at the time of cross examination that PWs Surjeet Singh, Naresh and Ramesh were present at the time of cremation. 10. It is not clarified by him as to what he was doing at village Naru Kheri at about 2.30 AM on 11/12.06.2008. It is also submitted that this witness had admitted at the time of cross examination that PWs Surjeet Singh, Naresh and Ramesh were present at the time of cremation. 10. Learned counsel for the appellants have further argued that recovery of the two buttons of the shirt is also manipulated by the prosecution as those have allegedly been recovered on 16.06.2008, whereas the same is not mentioned in the inquest report and the shirt has been recovered on 19.06.2008. It is also contended that the deceased was involved in an accident, otherwise if Naresh had an enmity with the deceased, the deceased would not have had liquor with him at 12.00 PM in the midnight and would have gone with him at a distance of 35 Kms towards Yamuna Nagar where he has been found dead in the ditches. It is also submitted that even the weapon of the offence was not connected as the said Saria (iron rod), which is allegedly used in the commission of crime, was not even put to the doctor who had conducted post-mortem on the dead body. 11. On the other hand, learned State counsel has argued that even though PW6 is a relation of the deceased, yet his testimony cannot be doubted as he had seen the deceased in the company of appellants immediately before the alleged occurrence. He had explained his absence from the village and after coming back, he reported the matter to the police. Similarly, statement of Sewa Ram (PW8) cannot be disbelieved as he is stated to have seen four persons coming out from the ditches on the day of occurrence and had also seen one moped parked on the road side. He has been a natural witness as he had categorically stated that he suspected that those four persons might be the appellants. It is further argued that besides the ocular version of PW6 and PW8, the prosecution has also found two buttons of the shirt of Parkash on the place of occurrence which are found to have been matched as per the report of the FSL (Ex.P7/A) with the shirt taken in the custody vide recovery memo Ex.10. It is further argued that besides the ocular version of PW6 and PW8, the prosecution has also found two buttons of the shirt of Parkash on the place of occurrence which are found to have been matched as per the report of the FSL (Ex.P7/A) with the shirt taken in the custody vide recovery memo Ex.10. The buttons of the shirt of Parkash from the scene of occurrence proves his presence and clinches the issue against them of their involvement in the alleged occurrence. It is also submitted that even the blood has been detected on the shirt of Parkash and the other appellant Naresh Kumar had got recovered Saria (iron rod) in pursuance of his disclosure statement Ex.P13. It is also argued that even the medical evidence shows that the deceased was beaten to death with iron rod, otherwise had it been a case of vehicular accident, the deceased should have suffered crush injuries. 12. We have heard counsel for the parties and perused the available record with their able assistance. 13. The prosecution has built this case on the basis of circumstantial evidence in which they have heavily relied upon the deposition of PW6 who is alleged to have seen the deceased in the company of the appellants immediately prior to the date and time of the occurrence. Insofar as PW6 is concerned, he has stated that he had seen the deceased with all the four appellants who were all taking liquor in the shop of Parkash (appellant). He stated that after seeing this, he went to his house and disclosed this fact to Surjit Singh (PW9). He has also stated that on 14.06.2008 at about 5.00/5.30 p.m., he came back from Uttar Pradesh and stayed in the village up to 18.06.2008. He made the statement to the police on 19.06.2008. This statement of PW6 cannot be believed firstly because he is closely related to the deceased being son of his father’s brother and also his mother’s sister. He made the statement to the police on 19.06.2008. This statement of PW6 cannot be believed firstly because he is closely related to the deceased being son of his father’s brother and also his mother’s sister. Secondly, he did not clarify as to when did he disclose the fact of the deceased taking liquor with the appellants to Surjit Singh (PW9) and why did he keep silent from 14.06.2008 to 18.06.2008 and suffered the statement to the police only on 19.06.2008 and finally his story of the deceased consuming liquor is belied from the post-mortem report as no alcohol has been found in the stomach of the deceased which found to have contained semi-digested food. Thus, the story propounded by PW6 of having seen the deceased in the company of the appellants while they were taking liquor is unbelievable. 14. Insofar as Surjit Singh (PW8) is concerned, his presence at the place of occurrence at 2.30 AM (wee hours) of morning on 12.06.2008 at village Naru Kheri has not been explained. All that has been said by him is that he was going to village Naru Kheri on his motorcycle on 11/12.06.2008 at 2.30 AM and when he reached near R.L. College, Darar, he saw four persons coming out of the ditches towards road side and one moped was also parked there. He has stated that he is working in the office of SDO, UHBVNL, Indri and during the month of June, 2008, he had office timing in between 9.00 AM to 5.00 PM. and is a resident of village Kalsora. In the absence of explanation as to why he had gone to Naru Kheri on 11/12.06.2008, his statement cannot be believed that he had seen four persons much-less the appellants near the place of occurrence. 15. Much stress has been laid by the prosecution and counsel for the State on the recovery of two buttons, which allegedly belong to the shirt of Parkash which was found to be stained with blood. This recovery is effected on 16.06.2008, whereas the inquest proceedings were carried out on 12.06.2008 but at that time the recovery of these two buttons is conspicuous by its absence in the report. This recovery is effected on 16.06.2008, whereas the inquest proceedings were carried out on 12.06.2008 but at that time the recovery of these two buttons is conspicuous by its absence in the report. Moreover, it is not explained as to how all the four accused along with the deceased could travel on one moped up to a distance of 30/35 Kms as the dead body has been recovered towards Yamuna Nagar which is at a distance of 30/35 Kms from the village of the deceased. 16. The conviction of the appellants cannot be based on the disclosure statements in the absence of any corroborative piece of evidence. Moreover, the Saria (iron rod), which was alleged to have been used for causing injuries, has not been found stained with blood and was also not put to the doctors to seek opinion as to whether the said piece of iron rod could have been sufficient to cause injuries which have been found on the person of the deceased. 17. Keeping in view the totality of the facts and circumstances narrated here-in-above, we are of the opinion that the prosecution has failed to prove its case beyond shadow of doubt and as such, both the appeals are hereby allowed, order of conviction and sentence dated 29.10.2009/05.11.2009 passed by the learned Trial Court is set aside and all the appellants are hereby acquitted and ordered to be released forthwith, if they are not involved any other case.