JUDGMENT Justice Rajiv Sharma, J. This appeal is instituted against the judgment rendered by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, in Sessions Trial No. 9 of 2008, on 9.6.2009, whereby the appellant-accused (hereinafter referred to as accused) who was charged with and tried for offence under Section 302/34 IPC alongwith Sushil Kumar, Rockey and Ajender Singh, was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- and in case of default of payment of fine, he was ordered to undergo simple imprisonment for one year. Accused Sushil Kumar, Rockey and Ajender Singh were acquitted of the charge. 2. The case of the prosecution, in a nut shell, is that Sh. Dalip Kumar son of Sh. Dayal Singh was living in tenanted premises at hospital road Reckong Peo. On 12.8.2007 at about 5:00 PM, PW-4 Sanjay Kumar, complainant and his mother RajKumari had met Sh. Dalip Kumar in Sabzi Mandi area in Reckong Peo. The complainant is younger brother of Sh. Dalip Kumar. Sh. Dalip Kumar had asked PW-4 and his mother to go to the quarter. Dalip Kumar had supplied the key of the quarter to PW-4 and had informed his mother and brother that he would be reaching the quarter after some time. It is alleged that Sh. Dalip Kumar had gone to Sangam Bar and Restaurant at hospital road at about 6:00 PM. PW-2 Harbans Singh is the owner/proprietor and Manager of Sangam Bar and Restaurant. Sh. Dalip Kumar asked PW-2 to supply him 10-15 chapattis in a packet. Thereafter, he had visited the Bar and cabins situated therein. PW-5 Anil Kumar and PW-6 Vijay Negi were taking liquor in one of the cabins of the Bar. Sh. Dalip Kumar was friend of PW-5 and PW-6. He had consumed two pegs with them and had thereafter left for the counter. PW-2 was present at the Counter. The accused persons No. 1 to 4 were taking liquor in the Bar Room of the Restaurant. They had asked for half bottle of 8 PM IMF liquor. PW-2 had supplied 8 PM liquor bottle as per the order to the accused persons No. 1 to 4. Accused person No. 3 Sh. Ajender Singh was administered one fist blow by Dalip Kumar. Thereafter, accused persons namely Sushil Kumar, Rockey and Ravish Kumar started beating Dalip Kumar. They had asked for half bottle of 8 PM IMF liquor. PW-2 had supplied 8 PM liquor bottle as per the order to the accused persons No. 1 to 4. Accused person No. 3 Sh. Ajender Singh was administered one fist blow by Dalip Kumar. Thereafter, accused persons namely Sushil Kumar, Rockey and Ravish Kumar started beating Dalip Kumar. PW-5 and PW-6 reached the counter and intervened. PW-2 Harbans Singh directed the accused persons and Dalip Kumar to get out of the Restaurant and Bar. The accused persons and Dalip Kumar stepped out of the Restaurant and PW-2 raised the bill. Thereafter, PW-2 started closing the Bar Room. Accused No. 1 and his three companions again picked up a quarrel with Sh. Dalip Kumar. PW5 and PW-6 stepped out of the Bar and saved Sh. Dalip Kumar from the clutches of accused persons. The quarter of Sh. Dalip Kumar was at some distance from the Bar of PW-2. PW-5 Anil Kumar accompanied Sh. Dalip Kumar upto a curve above the Bar. Sh. Dalip Kumar wanted to smoke and sat down for smoking alongwith PW-5 Anil Kumar. Accused Sushil Kumar and Ajender Singh visited him and felt sorry for the occurrence. As soon as the accused persons No. 1 & 3 left Sh. Dalip Kumar, the accused Sh. Ravish Kumar armed with bottle Ext. P-3, reached the spot and inflicted blow of bottle on the head of Sh. Dalip Kumar and ran away. He had thrown the bottle at some distance. PW-5 Anil Kumar asked Dalip Kumar if he had suffered injury. Sh. Dalip Kumar stated that he was well and left for his quarter. PW-5 Anil Kumar informed PW-6 Vijay Negi that accused person Ravish Kumar had inflicted blow of bottle on the head of Sh. Dalip Kumar. Sh. Surinder Kumar was friend of Dalip Kumar. Sh. Surinder Kumar reached the quarter of Dalip Kumar at about 10:00 PM. By that time, Dalip Kumar had also reached. Sh. Dalip Kumar had started feeling uneasy and he wanted to vomit out but had not been able to do so. His Jacket Ext. P-1 was torn. There were marks of blood on the trouser Ext. P-2 of Sh. Dalip Kumar. PW-4 and his mother asked Dalip Kumar about the injuries on his person. Sh. Dalip Kumar had started feeling uneasy and he wanted to vomit out but had not been able to do so. His Jacket Ext. P-1 was torn. There were marks of blood on the trouser Ext. P-2 of Sh. Dalip Kumar. PW-4 and his mother asked Dalip Kumar about the injuries on his person. He informed PW-4 Sanjay Kumar and his mother that accused person No. 3 had picked up a quarrel with him. Sh. Dalip Kumar had gone to the bed and started snoring. PW-4 Sanjay Kumar and his mother asked Sh. Dalip Kumar to get up at about 5-6 AM on 13.8.2007 but he was not responding. PW-4 Sanjay Kumar and Surinder Kumar then contacted PW-7 Dr. Surya Prakash Negi. PW-7 Dr. Surya Prakash Negi reached the quarter of Sh. Dalip Kumar and found serious injury on the head and directed PW-4 and his mother to take him to the District Hospital immediately. The Medical Officer admitted Sh. Dalip Kumar at 7:30 AM. He found serious injury on the head of Dalip Kumar. The patient required expert treatment at I.G.M.C. Sh. Dalip Kumar died at 9:15 AM on 13.8.2007. The police was informed. PW-19 Sukhdarshan Singh, SHO alongwith his men reached District Hospital. PW-19 Sukhdarshan Singh had taken into possession the dead body and requested the Medical Officer for post mortem examination. PW-19 Sukhdarshan Singh recorded statement of PW-4 Sanjay Kumar under Section 154 Cr.P.C. vide statement Ext. PW-4/A. He forwarded the same to Police Station for registration of FIR. Accused persons No. 3 & 4, namely, Ajender Singh and Ravish Kumar had absconded. The police arrested accused persons No. 1 & 2 who made disclosure statements Ext. PW-3/A and Ext. PW-3/B and recovered the bottle. Bottle Ext. P-3 was recovered vide recovery memo Ext. PW-3/C. The bottle was sealed. The Post mortem was conducted on the body of the deceased. The Medical Officer preserved the viscera of the deceased for chemical analysis. The bottle Ext. P-3 was sent to Finger Prints Bureau, Phillaur. The Director, Finger Prints Bureau, stated that finger prints available on the bottle were smudged and not fit for comparison. Thereafter, the bottle Ext. P3 was sealed in a sealed cover and sent to FSL, Junga. Viscera of the deceased and his clothes had also been sent for chemical analysis. On receipt of the report of the Chemical Examiner, PW20 Dr. Thereafter, the bottle Ext. P3 was sealed in a sealed cover and sent to FSL, Junga. Viscera of the deceased and his clothes had also been sent for chemical analysis. On receipt of the report of the Chemical Examiner, PW20 Dr. Harjinder Singh opined the death of Sh. Dalip Kumar due to head injury. The investigation was completed and after completing all the codal formalities, challan was put up. 3. The prosecution has examined as many as 21 witnesses. The accused were also examined under Section 313 Cr.P.C. The accused have denied having committed any offence. Their defence was of complete denial. The learned trial Court acquitted Sushil Kumar, Rockey and Ajender Singh and appellant Ravish Kumar was convicted, as noticed hereinabove. 4. Mr. Jagdish Vats, Advocate, appearing on behalf of the appellant has vehemently argued that the prosecution has failed to prove its case. On the other hand, Sh. Ramesh Thakur, Asstt. AG, has supported the judgment of the learned trial Court dated 9.6.2009. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 Smt. Santosh Kumari, testified that she was posted at Police Station Nichar from the year 2002 to May, 2008. She received a telephonic message at Nichar that her brother Sh. Dalip Kumar has suffered an accident at Reckong Peo. She reached Reckong Peo at about 4:00 PM on the same day. Her brother, by that time, had died. She came to know from the people present near the mortuary that her brother had been killed by Ravish Kumar, Ajender, Sushil and one other boy. She came to know that her brother was given beatings in Sangam Restaurant situated near District Hospital. The post mortem was conducted on the body. The clothes were taken into possession. Jacket is Ext. P-1 and Pant is Ext. P-2. In her cross examination, she could not narrate the names of the persons who had told her that deceased had been killed by the accused. She did not observe the condition of the head of the deceased. The deceased was having injuries on his throat and scratches on arms and legs. He was not having any injury on his head and the doctor was in a better position to tell. Her mother and brother had told her that deceased had quarrel with one boy named Ajender Singh. The deceased was having injuries on his throat and scratches on arms and legs. He was not having any injury on his head and the doctor was in a better position to tell. Her mother and brother had told her that deceased had quarrel with one boy named Ajender Singh. She also admitted that when they tried to wake up Sh. Dalip Kumar, he was unconscious. 7. PW-2 Harbans Singh is the owner of Sangam Restaurant situated at Recong Peo. According to him, on 12.8.2007 at about 4-5 PM, Sh. Vijay Negi and Sh. Anil Dhanta came to his Restaurant. They sat in the cabin. Sh. Dalip Kumar also came to the Restaurant at about 8:00 PM and went to Sh. Vijay Negi and Sh. Anil Dhanta in the cabin. Sh. Dalip Kumar ordered for supply of 10-15 ‘chapatis’ to his worker which were to be packed and in the meantime, 4-5 boys, resident of Kothi also came to the Restaurant. They placed order for supply of half bottle of 8 PM brand of liquor to his waitor. Sh. Dalip Kumar came to the Bar and a scuffle took place between him and the accused. On this, he came out of his room to the Bar and asked the accused and Dalip Kumar and 2-3 persons to get out of the Restaurant. He was declared hostile. He was cross-examined by the learned Public Prosecutor. He admitted that he knew the accused. The accused used to come to his Restaurant. He admitted that Sh. Vijay Negi and Anil Dhanta came to his Restaurant at about 4:00 PM and Sh. Dalip Kumar came to his Restaurant at about 6:00 PM. He also admitted that at about 8:30 PM, Sh. Dalip Kumar got up from the cabin where Sh. Vijay Negi and Sh. Anil Dhanta were sitting and came to the Bar. He also admitted that after sometime, Sh. Anil Dhanta also came to the Bar. He also admitted that Sh. Anil Dhanta shook hands with accused Ajender Singh. Sh. Dalip Kumar also went to the table of Sh. Ajender Singh and exchanged hot words and a scuffle took place between Ajender Singh and Dalip Kumar. In his cross examination by the learned Advocate appearing on behalf of accused No. 4, he admitted that Dalip Kumar also consumed liquor. Anil Dhanta shook hands with accused Ajender Singh. Sh. Dalip Kumar also went to the table of Sh. Ajender Singh and exchanged hot words and a scuffle took place between Ajender Singh and Dalip Kumar. In his cross examination by the learned Advocate appearing on behalf of accused No. 4, he admitted that Dalip Kumar also consumed liquor. He remained in the Hotel for about two and a half hours from 6:00 PM to 7:00 PM to 9:30 PM, when he closed the Hotel. In his cross-examination by the learned Advocate appearing on behalf of the accused No. 3, he admitted that Sh. Dalip Kumar was heavily drunk even before coming to the Hotel. 8. PW-3 Shiv Krishan deposed that accused Sushil Kumar made a disclosure statement Ext. PW-3/A to the effect that he could identify the place of occurrence where empty bottle of 8 PM liquor was lying near a curve. Accused Rocky also made a similar statement vide Ext. PW-3/B. The said bottle was taken into possession vide memo Ext. PW-3/C. The blood stains were also lying on the spot on the soil and sample of such soil was preserved by the police. It was sealed in a parcel and sealed with five seals bearing mark A and memo Ext. PW-3/D was prepared. The seal after use was handed over to him. The sample of the seal was also taken on cloth. In his cross-examination, he has admitted that the place of recovery of bottle was open and accessible to all. He had kept the seal at his home. He was not instructed by the police to produce the same in the Court. According to him, accused Sushil Kumar had picked up the bottle and handed over to the police. 9. PW-4 Sanjay Kumar is the brother of the deceased. He stated that Deepu met him near Sabji Mandi. He handed over the key of quarter to him. Sh. Deepu met him at about 5:00 PM. Sh. Surinder also came to his quarter and thereafter Sh. Deepu also came to the quarter after some time. Sh. Surinder asked him to bring tub for vomiting by Sh. Deepu. But, Deepu did not vomit. His mother inquired from him as to what had happened. Deepu told them that he had been beaten by Ajender and his companions who were residents of Kothi. Deepu felt easy and went to sleep. Sh. Surinder asked him to bring tub for vomiting by Sh. Deepu. But, Deepu did not vomit. His mother inquired from him as to what had happened. Deepu told them that he had been beaten by Ajender and his companions who were residents of Kothi. Deepu felt easy and went to sleep. On next morning, however, he did not get up. Doctor was contacted. Doctor told them to take Deepu to hospital for treatment. According to him in statement dated 13.8.2007, recorded under Section 154 Cr.P.C., it is correctly mentioned that Sh. Deepu told him that he had been beaten by Ajender, resident of Kothi. Volunteered that they came to know about the rest of the accused later. Anil Kumar had told them that Deepu was also beaten by Ravish, Rocky and Sushil. Anil Kumar did not tell them about the weapon, if any, used by the accused. 10. PW-5 Anil Kumar testified that he was sitting in a Cabin on 12.8.2007 at about 4:00 PM alongwith Sh. Vijay Negi in Sangam Bar and Restaurant situated near Regional Hospital, Reckong Peo and were watching cricket match. They had ordered half bottle of Royal Stag whisky. Deepu was having his quarter near Satellite Station. He came to them at about 6:00 PM. Deepu also consumed 3 pegs of whisky with them. Dalip Kumar left at about 8-8:30 PM. After ten minutes, he came to the Bar and made the payment of the bill. He noticed that Deepu was also standing at the Counter. Accused Ajender, Ravish Kumar, Sushil and Rocky were also sitting on the table of the Bar. He went to Ajender as he was known to him. He came to the counter and made payment. Deepu also went to the table of the accused. Heated exchanges took place between him and the accused Ajender. Deepu gave fist blow on the nose of Ajender Singh. Thereafter, Ravish Kumar, Sushil Kumar and Rocky caught hold of Deepu. He, Harbans and Sinku separated them. He heard noise from the outside and went in that direction. The accused were hurling abuses to each other. The accused Ajender and Ravish had caught hold of Deepu and again scuffle took place and again He, Vijay and Sinku separated them and took Deepu towards his quarter. On a curve above, Deepu told him that he wanted to smoke a cigarette and they smoked a cigarette each. The accused were hurling abuses to each other. The accused Ajender and Ravish had caught hold of Deepu and again scuffle took place and again He, Vijay and Sinku separated them and took Deepu towards his quarter. On a curve above, Deepu told him that he wanted to smoke a cigarette and they smoked a cigarette each. Accused Ajender and Sushil then reached on that curve and they had some conversation and accused Ajender felt sorry to Deepu. Accused Ravish reached there. He was carrying a bottle in his hand and he gave a bottle blow on the head of Deepu and fled from the scene. The bottle was left at the scene. He inquired from Deepu about his well being and Deepu told him that he was all right. He did not notice any mark of injury on the head of Deepu. He inquired from Deepu whether he would accompany him to leave him at his quarter but Deepu expressed that he would go to the quarter on his own, as he was all right. Vijay also came from the road side as he was also going to his place. On inquiry, he told to him that Deepu was all right. They left for their homes. But, on the next day, he got a telephonic call from Surinder at about 6:30 AM that Deepu was not well and has been brought to hospital. In his cross-examination, he deposed that the bottle Ext. P-3 was not packed. He did not know from where the packing was procured. The site plan was prepared by the police on 17th or 18th August, 2007. The police did not visit the spot on 13th or 14th August, 2007. When the site plan was prepared on 17th or 18th August, 2007, the bottle was not at the spot. He noticed Ravish throwing the bottle. He did not notice when the bottle fell. Accused persons came out of the Bar in his presence. He did not notice any bottle in the hands of any of the accused persons, as it was dark on that night and this darkness continued till they reached their homes. His statement was recorded on 18.8.2007. He was summoned to the Police Station on 13.8.2007. However, his statement was not recorded. He also admitted in his cross-examination that Deepu appeared to be intoxicated after taking liquor with them. His statement was recorded on 18.8.2007. He was summoned to the Police Station on 13.8.2007. However, his statement was not recorded. He also admitted in his cross-examination that Deepu appeared to be intoxicated after taking liquor with them. There was no street light in the Pagdandi which leads from Sangam Bar to the quarter of Deepu. 11. PW-6 Vijay Negi deposed that he and Anil Kumar were sitting in a cabin at Sangam Bar and Restaurant. They ordered half bottle of Royal Stag whisky. While consuming whisky, Sh. Dalip Kumar alias Deepu also came there at about 6:30 PM. He took two pegs of whisky and left at about 8:30 PM. After some time, Anil also went out. He heard a noise and came out of the cabin and noticed that altercation was taking place between Ajender, Ravish Kumar, Sushil Fauji and one other boy, whose name he did not know and Sh. Dalip Kumar. They were ordered to get out of the Restaurant. When they reached on the road, again altercation started between them and Ajender, Ravish Kumar and Sushil Kumar were giving beatings with fist and He, Anil Kumar and Sinku separated them. Deepu and Anil went towards the quarter by main road and the accused remained on the road and after sometime, they also went upward by shortcut. After some time, he also went by shortcut towards his residence which was also situated above the road. Ajender and Sushil Kumar were coming downward by shortcut and discussing that Ravish had given bottle blow on the head of Deepu. Anil was on the curve and on inquiry, he told him that Deepu was all right and left for his quarter. Anil told him that bottle blow had been given on the head of Deepu by Ravish Kumar. He was declared hostile by the learned Public Prosecutor. In his cross examination by the learned Public Prosecutor, he denied that he inquired from the accused as to what they had done. He was confronted with portion B to B of his statement mark B, where it was so recorded. He inquired from two accused only and statement about inquiry of all the four accused was incorrectly recorded. 12. PW-7 Surya Prakash Negi deposed that he was running Boris Medical Clinic in Gian Shopping Complex at Reckong Peo. He was confronted with portion B to B of his statement mark B, where it was so recorded. He inquired from two accused only and statement about inquiry of all the four accused was incorrectly recorded. 12. PW-7 Surya Prakash Negi deposed that he was running Boris Medical Clinic in Gian Shopping Complex at Reckong Peo. Surender Kumar made a telephonic call to him on 13.8.2007 to come with the vehicle. He accompanied him to the quarter situated near Satellite Station. One person, namely Deepu, was lying un-conscious. He checked his blood pressure and pulse rate. He was having injuries. He was not reacting to torch light. He was having swelling on his lip. He also turned his body and observed scratches on his legs. He advised them to take him to hospital. 13. PW-8 Raj Nand Negi deposed that accused Ajender Singh had made disclosure statement that he could identify the place of occurrence. His statement was reduced to writing as Ext. PW-8/A. The accused Ravish Kumar also made a disclosure statement Ext. PW-8/B. Both the accused Ajender Singh and Ravish Kumar then led them to the Sangam Bar and Restaurant where the occurrence took place and the curve situated roadside near Satellite Station. 14. PW-9 Prem Singh deposed that he was going to fill petrol in taxi No. HP-01 3113 to Powari as Petrol Pump at Reckong Peo was closed. When he reached at Khawangi, two boys came from above the road and gave signal to stop the taxi. They asked him to take them to Shimla and fare was fixed at Rs.3500/-. On reaching Rampur, they came to know that road at Matiana was blocked and then they proceeded to Shimla via Suni. They told him that they would like to go to Shimla via Karsog. 15. PW-10 Sher Singh has taken photographs of the dead body vide Ext. PW-10/A and PW-10/B. He has proved negatives Ext. PW-10/C and PW-10/D and also took photographs of place where ‘bajri’ and bottle was lying vide Ext. PW-10/E to Ext. PW-10/H and Ext. PW-10/J to Ext. PW-10/L. He also took photographs of Sangam Bar and Restaurant. 16. PW-11 Sher Singh deposed that he got telephonic call from accused Ajender who asked him to meet him near the lift. He was in Sabji Mandi area at that time. PW-10/E to Ext. PW-10/H and Ext. PW-10/J to Ext. PW-10/L. He also took photographs of Sangam Bar and Restaurant. 16. PW-11 Sher Singh deposed that he got telephonic call from accused Ajender who asked him to meet him near the lift. He was in Sabji Mandi area at that time. He went to the lift where accused Ajender was present and he asked him to loan him Rs. 2500/- with the assurance that the amount would be returned by his father. He gave him Rs. 2500/-. After 2-3 days, he came to know that the accused Ajender Singh was involved in a murder case and the parents of the accused Ajender and other co-accused, whose names he did not know, approached him at Shimla to facilitate the engagement of Sh. Chitkara, Advocate to defend them. 17. PW-12 Dr. Duman Singh Negi deposed that accused Ajender Singh son of Sh. Prem Singh was brought for medical examination. There was no external injury on his person. He issued MLC Ext. PW-12/A. 18. PW-13 Dr. Navneet Kohli deposed that he examined Rocky son of Piar Chand and noticed injuries on his part and issued MLC Ext. PW-13/A. 19. PW-14 Jai Singh deposed that he received statement under Section 154 Cr.P.C. from SHO Sukhdarshan Singh through Constable Suresh Kumar. He recorded FIR Ext. PW-14/A. Sukhdarshan Singh deposited with him 4 sealed viscera jars and two sealed parcels and he made entry of deposit in Malkhana register. On 17.8.2007, Sh. Sukh Dass ASI deposited with him one parcel containing bottle of 8 PM whisky, 3 other parcels sealed with seal A and he made entry of deposit against entry No. 199 in the Malkhana register. On 21.8.2007, viscera jars, the parcel containing wearing apparel and soil and seal impression were sent to FSL Junga through Constable Kamlesh Kumar and 8 PM bottle was also sent to Finger Print Bureau, Phillaur through him. 20. PW-15 Jagat Ram deposed that he officiated as MHC during the period 26.8.2007 to 14.9.2007. On 30.8.2008, Constable Kamlesh Kumar delivered one parcel containing empty bottle of 8 PM liquor to him which he had brought from the Finger Prints Bureau, Phillaour. The said bottle was sealed with one seal impression Finger Prints Bureau and one sealed letter bearing No. 3135/8 dated 30.8.2007 were collected from Constable Kamlesh Kumar from the Finger Prints Bureau, Phillaur on 27.8.2007. On 10.9.2007, Sh. The said bottle was sealed with one seal impression Finger Prints Bureau and one sealed letter bearing No. 3135/8 dated 30.8.2007 were collected from Constable Kamlesh Kumar from the Finger Prints Bureau, Phillaur on 27.8.2007. On 10.9.2007, Sh. Sukh Dass ASI deposited with him one bottle containing blood sample of accused Ajender Kumar and the bottle was sealed with seal impression and he made entry in the Malkhana Register. These were sent to FSL Junga vide RC No. 65/07. 21. PW 16 Sher Singh deposed that he also officiated as MHC at Police Station Reckong Peo from 20.5.2005 to 25.8.2008. On 15.9.2007 Constable Kamlesh Kumar No. 165 deposited with him one parcel sealed with seal bearing impression FPB Phillaur containing one empty bottle of 8 PM brand and had not been accepted by the FSL Junga on the ground that specimen seal impression was not sent with the bottle. The specimen seal impression was collected by Constable Kamlesh Kumar from the Finger Prints Bureau, Phillaur and the said specimen seal impression was deposited with him on 15.9.2007 with the bottle. On 16.9.2007 vide RC No. 71/07, he again delivered the aforesaid parcel of empty bottle and specimen seal impression to Constable Kamlesh Kumar for depositing at FSL Junga. 22. PW-17 Kamlesh Kumar deposed that on 21.8.2007, Jai Singh delivered to him 4 sealed parcels of viscera, one parcel containing wearing apparel of the deceased, one parcel containing blood of the deceased, one parcel containing soil sample in plastic container, one parcel containing empty bottle 8 PM whisky and specimen seal impressions of D.M.O. Kinnaur and H & A. The case property except parcel containing empty bottle of 8 PM whisky were deposited at FSL Junga on 22.8.2007 and the parcel containing empty bottle of 8 PM was deposited on 27.8.2007 at Finger Prints Bureau, Phillaur. The Finger Prints Bureau, examined the same and delivered to him that empty bottle in a sealed parcel and he delivered it to MHC on 30.8.2007. On 11.9.2007, HHC Jagat Ram delivered to him the said parcel containing empty bottle of 8 PM whisky and one parcel containing blood sample of Ajender Singh vide R.C. No. 65/07 which he deposited at FSL Junga and the parcel containing blood sample was deposited at FSL Junga on 12.9.2007. On 11.9.2007, HHC Jagat Ram delivered to him the said parcel containing empty bottle of 8 PM whisky and one parcel containing blood sample of Ajender Singh vide R.C. No. 65/07 which he deposited at FSL Junga and the parcel containing blood sample was deposited at FSL Junga on 12.9.2007. Bottle was refused to be accepted as specimen seal impression from Finger Prints Bureau, Phillaur was not with the bottle and on this he went to Finger Print Bureau and obtained specimen seal impression and deposited the bottle and specimen seal impression with MHC Police Station Reckong Peo on 15.9.2007. On 16.9.2007, the bottle and specimen seal impression was again delivered to him by MHC vide RC No. 71/07 which he deposited at FSL Junga on 17.9.2007 and delivered receipt of the deposit to MHC on return. 23. PW-18 Sukh Dass deposed that SHO Sukhdarshan Singh handed over the case file for investigation to him on 14.8.2007. He arrested accused Rockey and Sushil Kumar. He noticed that Rockey was having injuries on his right elbow and on both the knees and he forwarded him for medical examination. On 17.8.2007, accused Rockey and Sushil Kumar made disclosure statements vide Ext. PW-3/A and Ext. PW-3/B. He went to the spot and accused identified that place and one empty bottle of 8 PM liquor was also found at the spot. The site was got photographed. Spot map was also prepared on 18.8.2007. He inspected the spot where the blow was given on the head of the deceased on a curve near the Satellite in the presence of Anil Dhanta and Vijay Negi. He recorded the statement of accused Ravish, Ajender Singh about the identification of the place, where the blow with bottle was given. Sh. Anil Dhanta approached him on 23.8.2007 for recording his statement under Section 164 Cr.P.C. He filed application before the Court of Chief Judicial Magistrate, Kinnaur and obtained copy of statement of Anil Dhanta from the Court on 30.8.2007. In his cross-examination, he admitted that it has come in the investigation that deceased came to Sangam Bar at 7:00 PM. He was in Sangam Bar for about 2/2:30 hours. He left at about 8:30 PM. The bottle was lying in open but there was a heap of ‘bajri’ at the spot. In his cross-examination, he admitted that it has come in the investigation that deceased came to Sangam Bar at 7:00 PM. He was in Sangam Bar for about 2/2:30 hours. He left at about 8:30 PM. The bottle was lying in open but there was a heap of ‘bajri’ at the spot. He also admitted that even if he had visited the spot without accused, the bottle would have been available. 24. PW-19 Sukh Darshan Singh deposed that on 13.8.2007 at about 10:10 AM, the Medical Officer, Regional Hospital Reckong Peo delivered telephonic information at the Police Station that one person resident of Pangi had been brought to hospital in an injured condition and he had died during the course of treatment. On such information, he accompanied Constable Suresh Kumar in a government vehicle and reached at Regional Hospital. He photographed the dead body and carried out inquest and filled the inquest form Ext. PW-19/A. Post mortem of the dead body was got conducted. He recorded the statement of Sanjay Kumar under Section 154 Cr.P.C. which is Ext. PW-4/A. He proceeded to inspect the place of occurrence and carried out the investigation and prepared spot map Ext. PW-19/D. 25. PW-20 Dr. Harjinder Singh has conducted post mortem on the dead body of deceased Dalip Kumar. According to him, the head injury on the person of the deceased was possible with bottle Ext. P-3. According to the Chemical Examiner report Ext. PW-19/E, there was no alcohol or poison in the viscera of the deceased. His final opinion was that the death was caused due to extradural haematoma. 26. Statement of PW-21 is formal in nature. 27. Statement of PW-4 Sanjay Kumar was recorded under Section 154 Cr.P.C vide memo Ext. PW-4/A. According to the averments contained in Ext. PW-4/A, brother of Dalip Kumar Sh. Sanjay Kumar, reached the quarter and Dalip Kumar also reached after 15 minutes of the arrival of Surinder Kumar. Surinder Kumar asked him to bring the tub. He noticed blood on trouser of Dalip Kumar. He was trying to vomit but could not do so. His mother asked Dalip Kumar as to what had happened. Dalip Kumar told his mother that he was beaten up by Ajender Singh of Village Kothi and thereafter he became un-conscious. On the basis of Ext. PW-4/A, FIR Ext. PW-14/A dated 13.8.2007, was registered under Section 302 IPC. He was trying to vomit but could not do so. His mother asked Dalip Kumar as to what had happened. Dalip Kumar told his mother that he was beaten up by Ajender Singh of Village Kothi and thereafter he became un-conscious. On the basis of Ext. PW-4/A, FIR Ext. PW-14/A dated 13.8.2007, was registered under Section 302 IPC. In case deceased had been hit with bottle on the head by the accused, he would have definitely disclosed it to his mother or his brother PW-4 Sanjay Kumar, at the first instance. The earlier version should be given preference viz-a-viz the later version, which may be prone to manipulations and improvements. In FIR, it has also been stated that when PW-4 Sanjay Kumar’s mother asked his brother Dalip Kumar as to what had happened. His brother told his mother that he was beaten up by Sh. Ajender Singh of Village Kothi and thereafter his brother had gone un-conscious. The name of accused persons, namely, Sushil Kumar, Rockey and Ravish Kumar, the present appellant were neither mentioned in Ruka Ext. PW-4/A nor in FIR Ext. PW-14/A dated 13.8.2007. PW-1 Santosh Kumari also testified in cross-examination that her mother and brothers had told her that the deceased had quarreled with one boy named Ajender Singh. PW-4 Sanjay Kumar has admitted in his cross-examination that it was correctly mentioned that Sh. Deepu told them that he was beaten by one Ajender Singh, resident of kothi. Volunteered that they came to know about the rest of the accused later on. He also deposed that it was correctly recorded in his statement Ext. PW-4/A that Deepu had become un-conscious. 28. The police has recorded the statement of PW-5 Anil Kumar under Section 161 Cr.P.C. on 18.8.2007 though he was summoned to the Police Station on 13.8.2007. Statement of PW-6 Vijay Negi was also recorded on 18.8.2007. It has come for the first time in the statement under Section 161 Cr.P.C on 18.8.2007 of PW-5 Sh. Anil Kumar that accused has given bottle blow on the head of the deceased. PW-6 Sh. Vijay Negi in his statement recorded under Section 161 Cr.P.C. has deposed that he over heard from the accused when they were coming down that accused Ravish Kumar had given blow of bottle on the head of the deceased. Anil Kumar that accused has given bottle blow on the head of the deceased. PW-6 Sh. Vijay Negi in his statement recorded under Section 161 Cr.P.C. has deposed that he over heard from the accused when they were coming down that accused Ravish Kumar had given blow of bottle on the head of the deceased. It has come on record that deceased has given fist blow on the nose of Ajender Singh and blood had started oozing out from his nose. The scuffle has taken place inside the Restaurant and thereafter outside the Restaurant. Statement of PW-5 was also recorded under Section 164 Cr.P.C. vide Ext. PW-5/C. The statement made under Section 164 Cr.P.C. is a judicial proceeding as the procedure of recording the statement under this Section has all the ingredients of recording the evidence in the Court. However, the prosecution has not placed on record the manner in which the statement was recorded by the Judicial Magistrate under Section 164 Cr.P.C. to ensure that the safeguards provided under Section 164 Cr.P.C. have been adhered to or not. The statement made under Section 164 Cr.P.C. is not a substantive piece of evidence. Prosecution has not explained as to why the statements of PW-5 and PW-6 were recorded on 18.8.2007. It has come on record that PW-5 Anil Kumar had also met PW-4 Sanjay Kumar and he should have told him that other accused were also involved in the incident. The names of other accused Sushil Kumar, Rockey and Ravish have been brought for the first time on record on the basis of statement of PW-5 Anil Kumar and that too on 18.8.2007. 29. Their Lordships of the Hon’ble Supreme Court in Ganesh Bhavan Patel and another vrs. State of Maharashtra, reported in (1978) 4 SCC 371 , have held that the delay in examining the eye witnesses by the Investigating Officer under Section 161 Cr.P.C., can on the peculiar facts of a case, amount to serious infirmity in the prosecution case. It has been held at paragraphs 15, 29 and 47 as follows : “15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws., Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws., Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 Cr. P.C. were recorded on the following day. Welji (P.W. 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. delay of a few hours, simpliciler, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. ………………………………………………………….. 29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. …………………………………………………………….. 47. All the infirmities and flaws pointed out by the trial Court assumed importance, when considered in the light of the all pervading circumstance that there was inordinate delay in recording Ravji's statement on the basis of which the "F.I.R." was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the background, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion.” 30. The Division Bench of Bombay High Court in the case of Ramesh Bhagwan Manjrekar and others, vrs. State of Maharashtra, reported in 1997 Cri. L.J. 796, has held that prompt interrogation substantially eliminates chances of adulterated account creeping in testimony of the witnesses. It has been held at paragraph 30 as follows : “30. Mr. Gholkar, learned counsel for the appellants made a number of submissions before us. State of Maharashtra, reported in 1997 Cri. L.J. 796, has held that prompt interrogation substantially eliminates chances of adulterated account creeping in testimony of the witnesses. It has been held at paragraph 30 as follows : “30. Mr. Gholkar, learned counsel for the appellants made a number of submissions before us. We have already considered this first submission in respect of the oral dying declaration and not placed reliance on that piece of evidence. Mr. Gholkar secondly contended that the prosecution case that both Vasudeo and Ramdas Penter assaulted the deceased with gupties on his back is belied by medical evidence, inasmuch as, the doctor who conducted autopsy found only one injury attributable to gupti on the back of the deceased. We regret that we are not able to accept his contention. It is common knowledge that when a person is being assaulted he does not remain stationery. He keeps on moving in order to save himself for the instinct of life is a paramount instinct. It may be that one of the two blows may have missed the deceased while he was trying to rescue himself. It may also be, as urged by Mrs. Jyoti S. Pawar, learned APP that instead of the sharp point of the gupti striking the deceased the blunt side may have struck. Mrs. Pawar urged that this is probable in view of the fact that the post mortem report in the deceased shows that he had sustained an abrasion on his lumbar region which was 1 c.m. x 0.5 c.m. She urged that this may have been the result of one of the two gupti blows of which instead of the pointed part of gupti the blunt side may have struck. It is significant to point out that the eye-witnesses are wholly independent and had no axe to grind against appellants Vasudev and Ramdas. In our view unless these appellants participated in the incident they would not have deposed about their presence. Hence we are not inclined to accept the submission of Mr. Gholkar. Mr. Gholkar thirdly urged that the evidence of recovery, both of knife and of blood stained clothes, does not merit our acceptance because the said recoveries were effected from an open place. We have gone through the relevant evidence and we regret that we cannot accede to this contention of Mr. Gholkar. Fourthly Mr. Gholkar. Mr. Gholkar thirdly urged that the evidence of recovery, both of knife and of blood stained clothes, does not merit our acceptance because the said recoveries were effected from an open place. We have gone through the relevant evidence and we regret that we cannot accede to this contention of Mr. Gholkar. Fourthly Mr. Gholkar urged that the conduct of the eye-witness in not disclosing the names of the assailants militates against their claim of having seen the incident. He urged that Adam Hussain P.W. 3 should have disclosed the names of assailants to those who had accompanied him in taking Ramesh Shelar to Rajawadi Hospital and Shaikh Jalaluddin P.W. 2 should have made a similar disclosure to two of his workers who took him on a taxi to Sion Hospital. We regret that we are not able to accede to this contention of his. It appears that there is every likelihood that having seen the murder of the deceased who was done to death in a most ghastly and merciless manner, these witnesses may have been terrified and hence dared not to disclose their names to anyone or due to P.W. 3 being engrossed in rushing Ramesh Shelar to hospital and P.W. 2 in getting his injuries examined. We should also bear in mind that all these witnesses were examined under S. 161, Cr.P.C., within 10 hours of the incident taking place. The time of recording of their statements under S. 161, Cr.P.C. has been mentioned in paragraph 7. The Apex Court has repeatedly emphasised the value of prompt interrogation under S. 161, Cr.P.C. because the same substantially eliminates chances of an adulterated account creeping in, in the testimony of the witnesses. The promptness with which these witnesses have been interrogated under S. 161, Cr.P.C. is a guarantee of the fact that they saw this incident. Hence we reject this contention of Mr. Gholkar. Fifthly Mr. Gholkar urged that the evidence is that along with P.W. 3 Adam Baig and P.W. 7 Shakuntala two other persons accompanied Ramesh Shelar to Rajawadi hospital and their non-examination has prejudiced the appellants. We find absolutely no substance in this submission. In our view it was only and wholly proper after the prosecution having examined Adam Baig and Shakuntala not to have multiplied evidence in respect of this fact by examining those persons. We find absolutely no substance in this submission. In our view it was only and wholly proper after the prosecution having examined Adam Baig and Shakuntala not to have multiplied evidence in respect of this fact by examining those persons. For a similar reason we are not inclined to accept Mr. Gholkar's submission that the two persons who had accompanied Shaikh Jalaluddin P.W. 2 to Sion hospital were material witnesses and should have been examined. Finally Mr. Gholkar urged that there must have been an entry in the EPR register of Sion Hospital pertaining to the manner in which Jalaluddin P.W. 2 sustained injury and the said EPR entry was an essential piece of evidence and should have been proved by the prosecution. Again we do not find any merit in this contention. That Shaikh Jalaluddin went to Sion Hospital immediately after the incident and got his injuries examined the same evening at 9.50 p.m. is established by the evidence of Dr. Aiylam Vyenkatesh P.W. 11 who had medically examined him and made an entry in the Casualty Register at Serial No. 20073. During trial he proved the said entry as Exhibit 28. Regarding the manner he sustained the injury has come in his statement under S. 161, Cr.P.C. which was recorded within 6 hours of the incident taking place. In case the defence felt that the said EPR Entry was of value for it, it could have got the same summoned and proved. In our view the failure of the prosecution to have adduced evidence to prove the EPR entry would not falsify or wash out the credit to be attached to the ocular testimony of Jalaluddin.” 31. The Division Bench of the Calcutta High Court in the case of Jamiruddin Molla vrs. The State and others, reported in 1991 Cri. L.J. 356, has held that in a criminal trial, it is for the prosecution to offer explanation for the lapse of the Investigating Officer in not examining the witness immediately after the incident occurred. It is not for the trial Judge to make out a case for the prosecution. The learned Division Bench has held as under : “12. P.W. 3 was examined on 30-8-81 whereas the incident took place on 15-7-81. It may also be mentioned that F.I.R. was lodged long after the incident. It is not for the trial Judge to make out a case for the prosecution. The learned Division Bench has held as under : “12. P.W. 3 was examined on 30-8-81 whereas the incident took place on 15-7-81. It may also be mentioned that F.I.R. was lodged long after the incident. No explanation was given by the prosecution for not examining P.W. 3 immediately after the incident occurred. But the learned Judge found certain explanation for the lapse of the Investigating Officer. He stated that although the Investigating Officer has not given any explanation as to why P.W. 3 was examined after 1 1/2 months but since he was implicated in a criminal case arising out of the assault of the brother of the appellant 'naturally therefore the witnesses would not venture to appear before the Investigating Officer to make statement'. In our view, it was for the prosecution to offer explanation. It was not for the learned Judge to make out a case for the prosecution. It was for the Investigating Officer to find out likely witnesses in course of investigation. The witnesses would not come voluntarily to the Investigating Officer for making statement. In our view the learned Judge misdirected himself in trying to offer explanation for the prosecution.” 32. Their Lordships of the Hon’ble Supreme Court in the case of Vijaybhai Bhanabhai Patel vrs. Navnitbhai Nathubhai patel and others, reported in (2004) 10 SCC 583 , have held that the delay of two days in questioning the eye-witnesses (son and widow of deceased) by the IO was a serious mistake on the part of the prosecution. At paragraph 4, it has been held as follows : “4. The learned Counsel for the respondents submitted that PW 7 and PW 4 who claimed to be eyewitnesses cannot be believed for various reasons. It was submitted that the incident happened on 13.11.1985 but these two witnesses were questioned by the Investigation Officer only on 15.11.1985. No proper explanation was given by the Investigation Officer. There is evidence to show that the Investigation Officer had visited the house of the deceased on the very next day. It seems that there was an attempt by the prosecution to show that PW 7 the widow of the deceased was unconscious during this period and therefore, she could not be questioned by the Police. There is evidence to show that the Investigation Officer had visited the house of the deceased on the very next day. It seems that there was an attempt by the prosecution to show that PW 7 the widow of the deceased was unconscious during this period and therefore, she could not be questioned by the Police. But they could have questioned PW 4, the son of the deceased at least on the very next day. The delay in questioning these witnesses by the Investigation Officer is a serious mistake on the part of the prosecution. We do not think that the High Court erred in disbelieving these witnesses.” 33. PW-18 Sukh Dass, who has recorded statements of PW-5 Anil Kumar and PW-6 Vijay Negi has not given any explanation as to why the statements were recorded on 18.8.2007 though the incident is dated 12.8.2007 and FIR to this effect was also registered on 13.8.2007. 34. It has come in the statement of PW-5 that accused came out of the Bar in his presence. He did not notice bottle in the hands of any of them. He did not notice bottle lying on the road as it was dark. On that night, darkness continued till they left to their places. Since it was dark, PW-5 could not identify the accused Ravish Kumar on the spot. Even, as per his statement, he has not noticed any bottle in the hands of any of them. It is not the case of the prosecution that accused Ravish Kumar had gone back to the Restaurant and brought bottle with him. The deceased has died as per the post mortem report Ext. PW-20/A due to extradural hametoma. 35. According to PW-20 Dr. Harjinder Singh, the injury could be inflicted by bottle Ext. P-3. We are of the considered view that the bottle was of glass. It could have broken in case the blow was given with full force on the head of the deceased. The injury of extradural haematoma could not result if the bottle had not been struck with very big velocity/force. 36. Now, we will also advert to the manner in which the bottle Ext. P-3 has been stated to have been recovered on the basis of disclosure statements made by accused Sushil Kumar and Rocky, vide disclosure statements Ext. PW-3/A and Ext. PW-3/B, respectively. The incident has taken place on 12.8.2007. 36. Now, we will also advert to the manner in which the bottle Ext. P-3 has been stated to have been recovered on the basis of disclosure statements made by accused Sushil Kumar and Rocky, vide disclosure statements Ext. PW-3/A and Ext. PW-3/B, respectively. The incident has taken place on 12.8.2007. The bottle has been recovered as per disclosure statements Ext. PW-3/A and Ext. PW-3/B on 17.8.2007. PW-18 Sukh Dass has deposed that the recovered bottle was at the spot from the night of 12.8.2007. He also admitted that if he had visited the site without the accused, the bottle would have been available. He also admitted that the bottle of 8 PM brand of liquor was available with all the Bars. He has also admitted in his cross-examination that the bottle was lying without cover on the spot. He collected the packet from Sangam Bar. Also admitted that bottle was lying in the open but there was heap of ‘bajri’ on the spot. Ext. P-3 has been recovered from an open place which was accessible to all. 37. The learned Trial Court has also taken into consideration that the accused was earlier charged and tried for offence under Section 302 IPC. The fact of the matter is that the accused was acquitted in this trial. Their Lordships of the Hon’ble Supreme Court in the case of Ram Lakhan Singh and others vrs. The State of Uttar Pradesh, reported in AIR 1977 SC 1936 , have held that in the Indian system of law the accused starts with a presumption of innocence. His bad character is not relevant unless he gives evidence of good character in which case by rebuttal evidence of bad character could be adduced. It has been held as follows : “23. Although the judgment of the Sessions Judge is otherwise an exhaustive judgment it cannot be said from the instances which we have set out above that his appreciation is free from legal infirmity of some kind of prejudice against the accused who are described as "law breakers". In our system of law an accused starts with a presumption of innocence. His bad character is not relevant unless he gives evidence of good character in which case by rebuttal, evidence of bad character may be adduced (Section 54 of the Evidence Act).” 38. In our system of law an accused starts with a presumption of innocence. His bad character is not relevant unless he gives evidence of good character in which case by rebuttal, evidence of bad character may be adduced (Section 54 of the Evidence Act).” 38. According to the version of the prosecution, the accused and deceased were taking liquor at the Sangam Bar owned by PW-2. According to PW-2 Harbans Singh, all the accused had consumed liquor including deceased Deepu. He had consumed two pegs of whisky. His blood sample was collected and sent to FSL Junga. Surprisingly enough, as per Ext. PW-19/E, no alcohol/poison could be deducted in parcels P-1, P-2, P-3, P-4 and P-5 of Dalip Kumar. It makes case of the prosecution doubtful. Once deceased had consumed liquor, the traces of alcohol were bound to be present in his blood. PW-2 Harbans Lal has admitted in his cross examination that when deceased had come to his Restaurant-Bar, he was heavily drunk. He has remained at the spot for a period of 2-2:30 hours. Even, thereafter he has consumed liquor during this period. The possibility of the accused getting injuries after being intoxicated cannot be rule out moreover when the road used by him to reach his house was uneven. Infact, the scuffle had taken place inside the Bar and thereafter outside the Bar also as per the statements of PW-2 Harbans Lal, PW-5 Anil Kumar, PW-6 Vijay Negi. Only for the reason that the accused has come to Shimla to seek bail would not make him guilty. Since four accused were present on the spot, they had a right to get anticipatory bail. It is true that FIR is not encyclopedia, however, the deceased himself has narrated the incident to mother and Sanjay Kumar on the basis of which ‘ruka’ was recorded leading to FIR Ext. PW-14/A. He has not disclosed the name of accused and only name of Ajender Singh was mentioned in ‘ruka’ and FIR. 39. The prosecution version is also that PW-5 went with deceased towards his quarter. PW-5 Anil Kumar has seen hitting the deceased by the accused Ravish Kumar on the head. He has not tried to apprehend the accused on the spot. He has not accompanied the deceased to his quarter. 39. The prosecution version is also that PW-5 went with deceased towards his quarter. PW-5 Anil Kumar has seen hitting the deceased by the accused Ravish Kumar on the head. He has not tried to apprehend the accused on the spot. He has not accompanied the deceased to his quarter. He only inquired whether he was feeling all right or not and when he told that he is fine, he went and left him. Normally, if a person sees other person hitting on the head of a person with force, he would definitely try to provide medical aid or atleast it is expected for him to take that person to his house. The prosecution has failed to prove its case against the accused beyond reasonable doubt. 40. Their Lordships’ of the Hon’ble Supreme Court in the case of Prakash Mahadeo Godse vrs. State of Maharashtra, reported in 1969 (3) SCC 741 , have held that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. The instinct of self-preservation is uppermost in the mind of an ordinary man. The Courts have refused to attach much significance to abscondent evidence. It has been held as follows : “12. The fact that the appellant ran away and hid himself when people tried to catch hold of him does not lead to a firm conclusion that he behaved in that manner because he had a guilty mind. Even most innocent persons when suspected of grave crimes are likely to evade their arrest. The instinct of self-preservation is uppermost in the mind of an ordinary man. The Courts have refused to attach much significance to abscondent evidence.” 41. Their Lordships’ of the Hon’ble Supreme Court in the case of Matru alias Girish Chandra vrs. The State of U.P., reported in AIR 1971 SC 1050 , have held that absconding by itself does not necessarily lead to a definite conclusion of guilty mind. It has been held as follows : “15. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-Preservation. It has been held as follows : “15. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-Preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the 'accused. In the present case the appellant was with Ram Chandra till the F.I.R. was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.” 42. In the case of Thimma vrs. The State of Mysore, reported in AIR 1971 SC 1871 , their Lordships’ of the Hon’ble Supreme Court have held that though the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest. It has been held as follows : “11. The trial court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under s. 8 of. the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the court. the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the court. Even innocent persons may, when suspected of grave crimes, be tempted to, evade arrest: such is the instinct of self- preservation in an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.” 43. Further, their Lordships’ in the case of Raghubir Singh vrs. The State of U.P., reported in AIR 1971 SC 2156 , have held that the act of absconding even if proved, is normally considered a somewhat weak link in the chain of circumstances utilized for establishing the guilt of an accused person. It has been held as follows : “11. Shri Nuruddin Ahmad has also contended that the appellant had not absconded and the High Court was wrong in taking that into consideration. In our opinion, the act of absconding, even if proved, is normally considered a some what weak link in the chain of circumstances utilised for establishing the guilt of an accused person. If the evidence of eye-witnesses is held trustworthy then the act of absconding even if established would serve only to further fortify the satisfaction of the Court with respect to the guilt of the accused concerned, for, even an innocent person may well try to keep out of the way it he learns of his false implication in a serious crime reported to the police. In the present case, however, we also find that the circumstance of absconding was not put to the appellant in his examination so as to enable him to offer explanation. But on the existing material on the record, in our view, even without considering the act of absconding, the evidence seems to be strong and convincing enough to establish the guilt of the accused beyond reasonable doubt.” 44. The Apex Court in the case of Rahman vrs. The State of U.P., reported in AIR 1972 SC 110 , have held that absconding by itself is not conclusive either of guilt or of guilty conscience. It has been held as follows : “21. The Apex Court in the case of Rahman vrs. The State of U.P., reported in AIR 1972 SC 110 , have held that absconding by itself is not conclusive either of guilt or of guilty conscience. It has been held as follows : “21. It is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the Police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason.” 45. In the case of Datar Singh vrs. The State of Punjab, reported in AIR 1974 SC 1193 , their Lordships’ of the Hon’ble Supreme Court have held that prosecution cannot benefit from merely suspicious circumstances that the accused did not surrender or was not traceable for nearly one year. At paragraph 30, it has been held as follows : “30. We do not think that the appellant needs the support of any presumption from non-production of any of these witnesses. We also do not think that the prosecution can benefit from the merely suspicious circumstance that the appellant did not surrender or was not traceable for nearly a year. Reliance was placed by the appellant's Counsel on Prakash Mahadeo Godse v. State of Maharashtra(1), to contend that conduct of the accused such as hiding after the offence, by itself, does not conclude matters. Even though the acts there were somewhat different, the same principle would apply here. In any case the super-structure of the prosecution case, based on the testimony of two alleged eye witnesses, having crumbled in the case before us, we find it impossible not to give the appellant the benefit of doubt because of circumstances which could only raise suspicion against him. Sufficient number of very significant features of evidence on record, dealt with by us above, were ignored by the High Court and the Trial Court. Hence, we were compelled to reassess the evidence for ourselves.” 46. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 9.6.2009 rendered by Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, in Sessions Trial No. 9 of 2008 is set aside. Hence, we were compelled to reassess the evidence for ourselves.” 46. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 9.6.2009 rendered by Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, in Sessions Trial No. 9 of 2008 is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 47. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.