JUDGMENT Sanjay Karol, J. Assailing the judgment dated 3.10.2007, passed by learned Sessions Judge, Chamba, H.P., in Sessions Case No. 39 of 2006, titled as State of Himachal Pradesh vs. Hari Ram & others, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that Smt. Dei (deceased) who was married to Magha (not examined) was residing in village Khajuwa. She was issueless. Magha, a close relative of accused, wanted to contract second marriage with the niece of accused Jai Dayal, which fact was resisted by the deceased, as a result accused harboured animosity against her. On 1.7.2006, deceased was alone at her home, as her husband Magha stood arrested in connection with crime. On 2.7.2006 deceased was found murdered in her house. Pradhan Sh. Rashid Mohammad (PW-3) through Gopala (PW-4) sent message of such fact to Parshottam (PW-1), brother of the deceased. Since accused Hari Ram had harboured animosity against the deceased, on suspicion, he was called through villagers Devi Singh and Ballu (both not examined), to attend the meeting of the Panchayat so convened by Pradhan Sh. Rashid Mohammad (PW-3) for inquiring the case of death of Smt. Dei. There Hari Ram (accused No. 1) confessed to have murdered the deceased along with his accomplices Jai Dyal (accused No. 2), Hira (accused No. 3) and Negi Ram (accused No. 4). Information about the death was furnished to the police telephonically on the basis of which entry in rapt roznamcha was made. Police party proceeded to the spot where statement of Parshottam (PW-1) was recorded under the provisions of Section 154 Cr. P.C. (Ext. PW-1/A), on the basis of which F.I.R. No. 50 of 2006, dated 3.7.2006 (Ext. PW-13/A) was registered at Police Station Tissa, Distt. Chamba, H.P. under the provisions of Sections 302 read with Section 34 of the Indian Penal Code against all the accused persons. Accused Hari Ram was arrested and pursuant to disclosure statement (Est. PW-1/B), police recovered rug ( khind) (Ext.P1) and sheet (woolen chadder) (Ext.P2). Inquest report (Ext. PW-18/B) was prepared and post mortem of dead body was got conducted through Dr. Jaswant Singh (PW-16) who issued report (Ext. PW-16/B) and opined the cause of death to be perforation of vital organ i.e. lung leading to massive hemorrhage, shock and death. PW-1/B), police recovered rug ( khind) (Ext.P1) and sheet (woolen chadder) (Ext.P2). Inquest report (Ext. PW-18/B) was prepared and post mortem of dead body was got conducted through Dr. Jaswant Singh (PW-16) who issued report (Ext. PW-16/B) and opined the cause of death to be perforation of vital organ i.e. lung leading to massive hemorrhage, shock and death. Investigation revealed complicity of only accused Hari Ram and, as such, challan was filed against him in the Court for trial. 3. Accused Hari Ram was charged for having committed offences punishable under the provisions of Sections 302, 201 and 452 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. During trial, after six witnesses were examined, remaining accused namely Jai Dayal (accused No. 2), Hira (accused No. 3) and Negi Ram (accused No. 4) were impleaded as party/accused persons and charged for having committed offences punishable under the provisions of Sections 302, 201 and 452 all read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. In order to prove its case, in all, prosecution examined eighteen witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they pleaded innocence and false implication. In defence, accused did not lead any evidence. 6. Appreciating the testimonies of prosecution witnesses, trial Court acquitted the accused of the charged offences. Hence the present appeal. 7. Having heard learned counsel for the parties as also perused the record, we are of the considered view that in the instant case no ground for interference is made out. The Court below has correctly and completely appreciated the testimonies of prosecution witnesses, as also other material placed on record. 8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredient so as to constitute the charged offences. 9. 8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredient so as to constitute the charged offences. 9. In Prandas v. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under : “(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in – ‘Sheo Swarup v. Emperor’, AIR 1934 PC 227 (2) at pp.229, 230(A), in these words: “Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” ” 10. Identity of Smt. Dei is not in dispute. That she died on account of stab injury, as is so proved on record through the testimony of Dr. Jaswant Singh (PW-16) and medical record (Ext. PW-16/B) is also not in dispute. 11. The question which needs to be considered is as to whether prosecution has been able to establish, beyond reasonable doubt, complicity of the accused in the alleged crime. Admittedly there are no eye witnesses to the incident. Prosecution has also not built up its case on the basis of last seen theory. Prosecution relies upon following three circumstances to establish the guilt of the accused. (i) There was prior animosity between the accused and the deceased. Deceased had been threatened by the accused on several occasions as she had put up resistance, in her husband, getting married, to the niece of accused Jai Dayal. (ii) Accused Hari Ram confessed of having murdered the deceased alongwith his accomplices Negi Ram, Jai Dayal and Hira. (iii) Accused by making disclosure statement got recovered incriminating articles i.e. weapon of offence and cloth, which he concealed after the crime. We shall deal with each of the circumstances one by one. 12. Through the testimonies of Parshottam (PW-1), Chaman Singh (PW-2), pradhan Rashid Mohammad (PW-3), Gopala (PW-4), Smt. Subhadra (PW-5), Prem Lal (PW-6) and Yaqub Mohammad (PW-9), prosecution wants us to believe that Magha, husband of the deceased had desired to contract marriage with the niece of accused Jai Dyal, which fact was objected to by the deceased and, as such, accused, some of whom are relatives of Magha, harboured animosity against the deceased. Also accused had threatened the deceased of killing her, which fact she disclosed to these witnesses. Careful perusal of their testimonies would reveal that neither any threats were extended in their presence nor was any complaint ever lodged either by the deceased or by them with the panchayat, police or any other authority. Significantly except for pradhan Rashid Mohammad (PW-3) and Yaqub Mohammad (PW-9), remaining witnesses are either residents of different village or are close relatives of the deceased. Significantly except for pradhan Rashid Mohammad (PW-3) and Yaqub Mohammad (PW-9), remaining witnesses are either residents of different village or are close relatives of the deceased. Smt. Amina Begum (PW-7) has come out with yet another version of motive. According to her Hari Ram had wanted to kill Smt. Dei as she had falsely implicated her husband Magha in a charas case. Now why would she do so? has not been explained. It is nobody’s case that relations between the deceased wife and her husband were strained. 13. Perusal of testimonies of all the witnesses only reveal that none of them had disclosed the incident to the authorities nor had they taken any action against accused Hari Ram, prior to occurrence of the incident. Why so? has not been explained by them. Also witnesses admit not to have taken care of the deceased during the period her husband was in jail. In fact, they visited her only once. No doubt some of the witnesses (PW-1, PW-4 and PW-6) are close relatives of the deceased yet it has not come on record that these persons were having intimacy with her. Hence she had no reason to confide in them. More particularly when it has come on record that in the village there are number of houses where people reside. It has come on record that deceased was staying in a double storied house which is adjacent to the houses of Ballu, Narainu and Nihala and voices and sound is audible to their houses. Prosecution has not been able to explain as to why no person from the village has been examined. Whether threats were extended in their presence or whether the deceased confided in them would have been elicited through their examination. Also version of these witnesses with regard to alleged threats appears to be absolutely vague and unspecific with regard to date, time, month, year and place. 14. We further find that some of the prosecution witnesses namely Chaman Singh (PW-2) and Rashid Mohammad (PW-3) themselves were suspects in the crime. In fact, Investigating Officer ASI-Uttam Chand (PW-18) admits that accused Jai Dyal, Hira and Negi Ram were arrested only on suspicion and later on released as nothing incriminating was found against them. Also whether accused Jai Dyal had a niece or not has not come on record. What was her name and age has also not come on record. In fact, Investigating Officer ASI-Uttam Chand (PW-18) admits that accused Jai Dyal, Hira and Negi Ram were arrested only on suspicion and later on released as nothing incriminating was found against them. Also whether accused Jai Dyal had a niece or not has not come on record. What was her name and age has also not come on record. As such, it cannot be said that prosecution has been able to establish the factum of accused having extended threats or harboured animosity against the deceased, which in fact was the alleged motive of crime. 15. Interestingly, in the instant case, who first discovered the factum of death of the deceased has not come on record. Parshottam (PW-1) states that through Gopala (PW-4), he received a telephonic message from pradhan Rashid Mohammad (PW-3) to the effect that his sister had been murdered. Now pradhan (PW-3) does not state as to who informed him about the death. Also Gopala (PW-4) is also silent on this aspect. There is serious lapse on the part of prosecution not to have established such an important fact. Absence of missing link in the chain of events, gains significance in view of contradictions which have emerged on record in the testimony of witnesses, in whose presence accused Hari Ram allegedly confessed to have committed the crime along with his accomplices. Rashid Mohammad (PW-3) states that in the morning of 2.7.2006, meeting of panchayat was called to be held at 10.00 a.m. Now what was the purpose of such meeting and why it was called, he does not state. His version that meeting already stood convened is not corroborated by any material on record. Further he states that at 1.30 – 2.00 p.m., in that meeting, Ballu and Dass disclosed that someone had killed the deceased. He immediately called up Gopala (PW-4) on telephone and asked him to inform Parshottam (PW-1). According to the prosecution murder took place in the night intervening 1st/2nd of July, 2006. Now none noticed the accused in and around the house of the deceased either prior or after the crime. 16. According to PW-1, after reaching the village, he opened the door of house of her sister and found her lying on a cot covered with a chaddar and when he removed the same, he saw the shirt to be removed and a stab injury on the breast. Blood was also oozing. 16. According to PW-1, after reaching the village, he opened the door of house of her sister and found her lying on a cot covered with a chaddar and when he removed the same, he saw the shirt to be removed and a stab injury on the breast. Blood was also oozing. Salwar was untied. Now according to this witness, Hari Ram was called on the spot and in the presence of villagers, including members of the panchayat, confessed his guilt. The alleged confession was made in the presence of Parshottam (PW-1), Chaman Singh (PW-2), Rashid Mohammad (PW-3) and Gopala (PW-4). Conjoint reading of testimonies of these witnesses would reveal that prior to alleged confession made by accused Hari Ram, PW-3 had slapped him. Significantly it has also come on record that both Rashid Mohammad and Parshottam themselves were suspect in the crime. As such, we do not find the alleged statement to be voluntary in nature or free from doubt. This we say so also for the reason that there is contradiction in the testimonies of these witnesses with regard to the manner in which accused murdered the deceased. According to Parshottam (PW-1), in the night intervening 1st/2nd of July, 2006, Hari Ram hid himself under the cot of Smt. Dei (deceased) and after she went off to sleep, he opened the door and made the other accused enter the house. All of them gagged her mouth and then took her to a nearby naala, where they stabbed her and after bringing her body back to the room, laid it on the cot and covered it with a chaddar. This has also been stated by Gopala (PW-4). However version so narrated by Chaman Singh (PW-2) is totally different, according to whom deceased was murdered in the house itself. In the house accused Hira gave a blow with a knife on the chest and accused Negi Ram caught the deceased from her legs; accused Jai Dyal held the torch and accused Hari Ram stood outside keeping vigil. Thereafter body was lifted to Chieu Ghaati from where it was brought back and kept inside the room. Yet third version, according to Rashid Mohammad (PW-3) is that accused Negi gagged mouth of the deceased, accused Hira gave blow with a knife and accused Jai Dyal gave blow with a torch light. 17. Law with regard to confessional statement is now well settled. Yet third version, according to Rashid Mohammad (PW-3) is that accused Negi gagged mouth of the deceased, accused Hira gave blow with a knife and accused Jai Dyal gave blow with a torch light. 17. Law with regard to confessional statement is now well settled. It is a settled position of law that extra judicial confession is a very weak kind of evidence requiring material corroboration. [See: Sahadevan & another vs. State of Tamil Nadu, (2012) 6 SCC 403 ]. 18. The Apex Court in R. Kuppusamy vs. State, Represented by Inspector of Police, Ambeiligai, (2013) 3 SCC 322 , relying upon its earlier decisions however clarified that each case has to be considered on its own facts. Despite the inherent weakness of an extra-judicial confession as a piece of evidence, the same cannot be ignored if it is otherwise shown to be voluntary and truthful. Such statement cannot be termed as tainted evidence. Corroboration thereof is required only as a measure of abundant caution. Relying upon the decision rendered in Gura Singh vs. State of Rajasthan, (2001) 2 SCC 205 , the Court categorically held that if the testimony of the witness to whom confession is made is found to be trustworthy and that the confession was true and voluntary, conviction can be founded on such evidence alone. Thus credibility of a witness gains significance. 19. Further, the apex Court in Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 , has held as under : “29. The issue that emanates for appreciation is whether such confessional statement should be given any credence or thrown overboard. In this context, we may refer with profit to the authority in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 , wherein, after referring to the decisions in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 , Maghar Singh v. State of Punjab, (1975) 4 SCC 234 , Narayan Singh V. State of M.P., (1985) 4 SCC 26 , Kishore Chand v. State of H.P., (1991) 1 SCC 286 and Baldev Raj v. State of Haryana,1991 Supp (1) SCC 14, it has been opined that it is the settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and his evidence is credible. The evidence in the form of extrajudicial confession made by the accused before the witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that it was true and voluntarily made, then the conviction can be founded on such evidence alone. The aspects which have to be taken care of are the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. That apart, before relying on the confession, the court has to be satisfied that it is voluntary and it is not the result of inducement, threat or promise as envisaged under Section 24 of the Act or brought about in suspicious circumstances to circumvent Sections 25 and 26. 30. Recently, in Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 , after referring to the rulings in Sk. Yusuf v. State of W.B., (2011) 11 SCC 754 and Pancho v. State of Haryana, (2011) 10 SCC 165 , a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extrajudicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law.” [Emphasis supplied] 20. While construing the provisions of Sections 3 and 30 of the Indian Evidence Act, 1872, in a case where confession is made by co-accused, the Constitution Bench of the apex Court in Haricharan Kurmi vs. State of Bihar, AIR 1964 Supreme Court 1184, held as under :- “As a result of the provisions contained in S. 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.” [Also see: Pancho vs. State of Haryana, (2011) 10 SCC 165 ] 21. Applying the aforesaid law in the instant facts we do not find the testimony of the prosecution witnesses with regard to the alleged extra judicial confession to be inspiring in confidence at all, more so, in view of the material contradictions already noticed earlier. Also one cannot loose sight of the fact that some of the witnesses were themselves suspects and accused was slapped before making the same. 22. Prosecution has also referred to and relied upon the testimony of Yakub Mohammad (PW-9). According to whom accused had independently confessed his guilt. We also do not find it to be inspiring in confidence at all. This witness is a close relative of the padhan (PW-3) who himself was a suspect. Also he does not state that he disclosed the factum of alleged confession to any person. Why so? has not been explained. After all murder had taken place in the village and his close relative was a suspect. Why would he not report the matter has not been explained. Also what action he took thereafter is left to be anybody’s guess. 23. Significantly Devi Singh and Ballu have not been examined in Court who allegedly fetched the accused for joining the panchayat meeting. It is not the case of prosecution that accused had fled away to a distant place or was otherwise not available. Where did these persons find the accused? What did he convey to them on their way? in the panchayat? has not been established through their testimonies. After all Ballu was one of the first persons to have disclosed about the factum of death of the deceased to the pradhan. 24. No minutes of the meeting convened by the panchayat were reduced into writing. Also members of the panchayat, executive committee or the ward members have not corroborated such disclosure statement. Version of prosecution that accused Hari Ram had extended threats also is not corroborated on record. 25. That pradhan (PW-3) had telephonically informed Gopala (PW-4) who in turn telephonically informed Parshottam (PW-1) is also not corroborated on record by producing the call records. All this gains significance when viewed in totality. At the cost of repetition it be only mentioned that factum of death of the deceased was first disclosed or discovered by Ballu, who informed the panchayat and PW-1 was the first one to have entered the house where he found the dead body lying. All this gains significance when viewed in totality. At the cost of repetition it be only mentioned that factum of death of the deceased was first disclosed or discovered by Ballu, who informed the panchayat and PW-1 was the first one to have entered the house where he found the dead body lying. Also police was never informed by the pradhan of the alleged confessional statement. 26. It appears that the accused was beaten up by the police which fact can be inferred from the testimony of Rashid Mohammad (PW-3) who states that “I had given a slap to accused Hari Ram at the spot after commission of murder. Police has not beaten accused Hari Ram at that time”. Thus from this version, it appears that police had already reached the spot which casts doubt about the voluntary nature of the alleged disclosure statement leading to recovery of incriminating articles. 27. We find disclosure statement (Ext. PW-1/C) itself is suspect as according to Gopala (PW-4) who witnessed the same, police recorded his statement on 2.7.2006. But the disclosure statement is dated 14.7.2006. Further according to this witness accused had disclosed to the police the place where he had kept the incriminating articles. Evidence qua disclosure statement becomes irrelevant in view of police already knowing the place where such incriminating articles stood concealed by the accused. Disclosure statement made to police official cannot be taken into account being hit by provisions of the Indian Evidence Act. 28. According to Parshottam (PW-1) blood was found in the house which version stands belied by the Investigating Officer (PW-18), who categorically denies such fact. 29. We find the guilt of the accused not to have been established even through link evidence. As per report of F.S.L. (Ext. PX & PY) blood found on the incriminating articles could not be linked to the deceased. The alleged recovery of the incriminating articles was effected in the presence of independent witnesses whose testimony we have already examined and found not to be inspiring in confidence at all. Significantly, weapon of offence was not shown to the Doctor (PW-16). 30. The alleged crime took place in a village. It is not the case of prosecution that houses in the village were not occupied by their residents. Significantly, weapon of offence was not shown to the Doctor (PW-16). 30. The alleged crime took place in a village. It is not the case of prosecution that houses in the village were not occupied by their residents. It is also not the case of prosecution that deceased was made unconscious by administering certain medicine where after, she was stealthily taken away from her house to the naala. After all any noise, made in the middle of the night, would have only attracted attention or attraction of other residents of the village. 31. PW-1 also does not remember names of the persons who accompanied him to the house of the deceased. This version of his is unbelievable as his sister had died and he would have remembered names of such persons. 32. Having minutely examined the testimony of prosecution witnesses we are of the considered view that they are not worthy of credence. Statements are contradictory and uninspiring in confidence. Prosecution has not been able to establish by leading clear, cogent, convincing piece of evidence the place of commission of alleged crime and the guilt of the accused. The evidence cannot be said to be cogent, convincing or plausible. 33. Thus, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused persons in furtherance of their common intention entered the house of Sh. Magha after having made preparation for causing death of Smt. Dei w/o Magha and committed murder of Smt. Dei and also caused the evidence of the offence to disappear with intention of screening from legal punishment, by leading clear, cogent, convincing and reliable material on record. It cannot be said that the findings returned by the court below are not borne out from record, perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence. 34. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , since it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.