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2014 DIGILAW 184 (JK)

Karan Singh v. State Of J&K

2014-04-26

JANAK RAJ KOTWAL, Virender Singh

body2014
Per Kotwal, J. 1. This appeal by Karan Singh (A-1), Parveen Singh (A-2) and Sham Singh (A-3) is directed against judgment and order dated 12.11.1994 of the learned Sessions Judge, Jammu, whereby they have been convicted under sections 302/34 and 379 RPC and sentenced to imprisonment for life under section 302 RPC and six months' rigorous imprisonment under section 379 RPC. Besides, A-1 and A-3 have been convicted and sentenced to one year's rigorous imprisonment under section 4/27 Arms Act. The sentence of life imprisonment is subject to confirmation by this court for which learned Sessions Judge has made the reference. 2. Heard. We have perused the record. 3. Prosecution case is that on 25.02.1986 deceased Tilak Raj, a resident of village, Purana Pind, Tehsil R.S.Pura, left his house at about 7.00 AM by his bicycle accompanied by PW Som Nath to attend his work place at Gandhinagar, Jammu. PW Som Nath, however, returned back running and informed brother, PW Mulakh Raj, of the deceased that A-1 to A-3, who were respectively armed with `toka', hockey-stick and `dah', waylaid and inflicted severe injuries to the deceased near the shellor outside the village, who has fallen on spot. PW Mulak Raj immediately told this fact to his mother and ran towards the place of occurrence along with PW Som Nath. No sooner did he reach in the street outside the house, he saw that A-1 to A-3 armed with weapons were going towards village, Satrian, by the bicycle of the deceased, who danced `bangara' at the chowk and A-1 rowdily declared that today they have killed Tilak Raj and revenged the death of their brother, Subash Chander. PWs Mulakh Raj and Som Nath ran towards the shellor where they found dead body of the deceased lying at the side of the road having suffered lot of injuries and amputation of right hand. PW Mulakh Raj then went to Police Station, R.S.Pura and lodged information about the occurrence in which, besides above, he stated that A-1 to A-3 were inimical towards his family and have committed murder of the deceased with a common intention. 3.1. On receipt of the information, police registered offences under sections 302, 379/34 RPC and 4/27 Arms Act as First Information Report (FIR) No. 43/86 and SHO of the Police Station, Inspector, Shamsher Bhadur Bakshi, took up the investigation. The Investigating Officer (IO) proceeded to the spot. 3.1. On receipt of the information, police registered offences under sections 302, 379/34 RPC and 4/27 Arms Act as First Information Report (FIR) No. 43/86 and SHO of the Police Station, Inspector, Shamsher Bhadur Bakshi, took up the investigation. The Investigating Officer (IO) proceeded to the spot. He prepared `report marg' and seized the dead body and dispatched it for postmortem examination. On the same day, PW Dr. Baldev Raj Sharma, Medical Officer, PHC, R.S.Pura, performed autopsy on the dead body of the deceased. All the three appellants were arrested and weapons of offence seized from their possession on the same day. On the same day, IO recovered and seized the bicycle of the deceased on the basis of the disclosure statement of A-2. 4. After completion of the investigation, police laid charge sheet against the appellants, which after committal came up for trial before learned Sessions Judge, Jammu. Appellants pleaded not guilty and claimed to be tried. Prosecution thus entered its evidence and sought to prove its case by producing 12 witnesses, namely: (1) Mulakh Raj, (2) Som Nath, (3) Gian Chand, (4) Mangal Dass, (5) Mst. Kartaro Devi, (6) Ashok Kumar, (7) Dr. Baldev Raj Sharma, (8) Parvez Sikender Bhat, (9) Naseeb Ullah Khan, (10) Ganesh Raj, (11) H.C.Bhagat and (12) K.K.Raina. 5. Appellants in their statements recorded under section 342 Cr.P.C. by the learned trial court denied everything appearing against them in the prosecution evidence and pleaded that they have been falsely implicated and prosecution witnesses have stated lie before the court. Appellants, however, did not lead any evidence in their defence. 6. Learned trial court, after hearing both sides and appraising the prosecution evidence and record, found the charges having been proved and therefore, recorded conviction against and sentenced the appellants. The conclusion recorded by the trial court reads: 42. The charge in this case has been proved beyond any reasonable doubt. Firstly because PW Ashok Kumar saw the accused persons sitting at the place of occurrence around 7.00 AM. The deceased was waylaid at the same place and PW Ashok Kumar found his dead body soon thereafter. The accused staged Bhangra to rejoice at the killing of the deceased near the house of the deceased and his village which was witnessed by some of the villagers including the prosecution party. The deceased was waylaid at the same place and PW Ashok Kumar found his dead body soon thereafter. The accused staged Bhangra to rejoice at the killing of the deceased near the house of the deceased and his village which was witnessed by some of the villagers including the prosecution party. They openly declared having killed the deceased to avenge the killing of their brother Subash Chander by them. They committed theft of the bicycle of the deceased which was later recovered from one of them. The weapons of the offence and the bicycle were found with the stains of blood. They were arrested on the same date by the police. None of these facts were challenged in the cross-examination. So it is proved that all the accused committed murder of the deceased and thereafter committed theft of his bicycle. They committed the murder with the sharp edged weapons, possession of which is prohibited. So the prosecution has proved the charges against the accused beyond any reasonable doubt. They are accordingly convicted under section 302/34, 379 RPC. Accused Karan Singh and Sham Singh are also found guilty under section 4/27 Arms Act and convicted accordingly." 7. There is no direct evidence in this case as the only eye witness of the occurrence, PW Som Nath, did not support the prosecution case at trial and turned hostile. Conviction of the appellants is based upon circumstantial evidence comprising of the extra-judicial confession made by A-1 in presence of A-2 and A-3 as its main plank. 8. The extra-judicial confession, as per the prosecution, was made by the A-1 (Karan Singh) when after committing the offence all the three appellants were going towards their village, Satrian, by the bicycle of the deceased and at a chowk near the house of the deceased they had danced `bangara' and A-1 had declared that they have killed Tilak Raj and avenged the death of their brother, Subash Chander. The confession was made in presence of PWs, Mulakh Raj and Mangal Dass and immediately came to be recorded in the FIR lodged by the former at Police Station, R.S.Pura, which he has proved as Ex.P-A. 9. The confession was made in presence of PWs, Mulakh Raj and Mangal Dass and immediately came to be recorded in the FIR lodged by the former at Police Station, R.S.Pura, which he has proved as Ex.P-A. 9. In proof of the extra-judicial confession made by A-1, learned trial court relied upon the testimony of PW Mulakh Raj observing that "the witness was grilled in the cross-examination but his testimony regarding extra-judicial confession made by the appellants in the manner deposed by him remains un-shaken". Learned trial court found corroboration of the testimony of PW-Mulakh Raj in the testimony of PW-Mangal Dass, another brother of the deceased and the testimony of PW-Ashok Kumar, who had seen the appellants armed with weapons sitting at the place of occurrence at around 7 AM and shortly thereafter had seen the dead body of the deceased at the same place. Corroboration was also found in the contents of the FIR lodged by PW-Mulakh Raj at 7.40 AM, copy whereof had reached the local Magistrate on the same day. Learned trial court took the view that since A-2 and A-3 had staged `bhangra' after A-1 had declared that they have together killed the deceased so the confession made by A-1 was approved by them too. 10. Besides relying upon the extra-judicial confession of A-1, learned trial court found corroboration of such confession in the circumstantial evidence, like arrest of the appellants on the same day from their village, namely, Satraian, the recovery of respective weapons from their possession and the existence of human blood stains on the said weapons. Another circumstance, which the trial court used in corroboration of the extra-judicial confession of the A-1, was the recovery on the basis of disclosure statement of A-2 (Parveen Singh) of the bicycle of the deceased, which he has been riding before the occurrence and as the trial court found, was stolen by the appellants after the occurrence. Prompt lodging of the FIR, which learned trial court found was lodged at 7.40 AM, also weighed with the court as a circumstance lending assurance to the prosecution version. Learned trial court also found in the extra-judicial confession the motive of offence, which was to avenge the killing of their brother leading to registration of FIR No. 116 of 1983. Prompt lodging of the FIR, which learned trial court found was lodged at 7.40 AM, also weighed with the court as a circumstance lending assurance to the prosecution version. Learned trial court also found in the extra-judicial confession the motive of offence, which was to avenge the killing of their brother leading to registration of FIR No. 116 of 1983. Learned trial court also traced guilt of the appellants in their hilarious mood in which they got down from the bicycle on reaching at the village of the deceased and danced `bangara' as also in total denial of their arrest, possession of weapons by them and seizure of the stolen bicycle from them. On the proof and strength of all these circumstances learned trial court arrived at a conclusion that accused (appellants) committed murder of the deceased with sharp edged weapons and committed theft of his bicycle and accordingly recorded the conviction against and imposed the sentence on the appellants. 11. Appellants have assailed the impugned judgment mainly and primarily on the ground that the extra-judicial confession said to have been made by the appellants has not been proved by reliable and legal evidence inasmuch as both the witnesses, namely, Mulakh Raj and Mangal Dass are the real brothers of the deceased, no independent witness has been produced, PW-Kartaro Devi has not supported the prosecution case and PW Ratno Devi, who is mother of the deceased and had been cited as a witness to the so called extra-judicial confession, has not been produced, giving rise to a presumption that, if produced, she might not have supported the prosecution case. Further, it is contended that extra-judicial confession could have been used only to lend credence to other evidence. Further it is contended that joint extra-judicial confession has been attributed to all the three appellants without attributing specific words to each of them. 12. Mr. Sunil Sethi, learned Senior Advocate, appearing for the appellants submitted that testimonies of PWs-Mulakh Raj and Mangal Dass, who are real brothers of the deceased, neither were sufficient to prove the manner in which the extra-judicial confession was made by the appellants nor could have been relied upon. Mr. 12. Mr. Sunil Sethi, learned Senior Advocate, appearing for the appellants submitted that testimonies of PWs-Mulakh Raj and Mangal Dass, who are real brothers of the deceased, neither were sufficient to prove the manner in which the extra-judicial confession was made by the appellants nor could have been relied upon. Mr. Sethi would say that testimony of PW-Mulakh Raj does not indicate presence of PW-Mangal Dass at the time when information about the occurrence was allegedly given to him by PW-Som Nath or `bangara' dance was performed by the appellants and declaration about killing of the deceased was allegedly made by A-1. Mr. Sethi sought to point out contradiction as regards the place of `bangara' dance and declaration as according to PW-Mulakh Raj this happened at a distance from their house whereas according to PW-Mangal Dass outside their house. Mr. Sethi would say further that no independent witness to the extra-judicial confession has been produced and not even mother of the deceased has been produced, which makes evidence of the two witnesses unreliable. 13. We have scrutinized and appraised afresh the entire evidence, in particular the testimonies of PWs-Mulakh Raj, Mangal Dass and Kartaro Devi, in light of the challenge to the reliability of evidence on the factum of extra-judicial confession as demonstrated by Mr. Sethi, learned Senior Advocate. We, however, are not persuaded to entertain any doubt about or find any insufficiency in evidence as regards the place, manner and the reality of the extra-judicial confession made by the A-1 in presence of A-2 and A-3. It is too vivid in the evidence that a little away from the house of the deceased and PWs-Mulakh Raj and Mangal Dass, which is located in village, Purana Pind, there is a chowk and at this chowk PWs-Mulakh Raj and Mangal Dass had come across the appellants, who were going by a bicycle towards their village, namely, Satrian. It was at this chowk and at that time that the appellants had performed a `bangara' dance and in that course A-1, Karan Singh, had declared that they have avenged the death of their brother by killing Tilak Raj. The say of PWs-Mulakh Raj and Mangal Dass in this regard gets a strong and valuable corroboration in the contents of the FIR (Ex.PA), which was lodged immediately thereafter by the former. The say of PWs-Mulakh Raj and Mangal Dass in this regard gets a strong and valuable corroboration in the contents of the FIR (Ex.PA), which was lodged immediately thereafter by the former. It may be in place to state here that as per the FIR and the evidence, the deceased had left his house at 7 AM, which was shortly followed by the information about the occurrence to PW-Mulakh Raj by PW Som Nath and the `bangra' by the appellants. The FIR was lodged within 40 minutes at 7.40 AM and in the intervening period, informant, Mulakh Raj had visited the place of occurrence and seen the dead body of his brother there. Promptness in lodging the FIR would rule out any possibility of concoction about the nature of occurrence and false implication of any person. Promptness in lodging the FIR, besides authenticating the correctness of the FIR, would render immaterial the small discrepancies and contradictions sought to be pointed out by the appellants in the versions of the two witnesses as regards all that happened after killing of the deceased. 14. Lack of the locals of the area as prosecution witnesses to what had happened at the chowk on that day stands sufficiently explained in the evidence of PW-Mangal Dass that all the bystanders had run away on seeing the appellants. That no one would have been prepared to come forward and stand as a witness in support of prosecution is evident and writ large from the evidence of PWs-Som Nath and Kartaro Devi, both of whom have turned hostile, though their testimonies before the court as prosecution witnesses would show that they must have seen much and have concealed much too. 15. Having appraised the evidence, we feel safely inclined to accept the evidence that the appellants immediately after the occurrence had performed `bangara' dance at a chowk near the house of the deceased and in that course A-1 (Karan Singh) had declared in presence of A-2 and A-3 that they have revenged the death of their brother by killing Tilak Raj. The declaration so made can well be taken and has rightly been taken as extra-judicial confession having been made by A-1 in presence of A-2 and A-3 and we hold that the extra-judicial confession in above manner has been sufficiently and satisfactorily proved. The declaration so made can well be taken and has rightly been taken as extra-judicial confession having been made by A-1 in presence of A-2 and A-3 and we hold that the extra-judicial confession in above manner has been sufficiently and satisfactorily proved. Besides, we have noticed from the evidence that the said extra-judicial confession was made by A-1 in the course of a `bangra' dance performed by the appellants in their overwhelm and sense of achievement immediately after the occurrence and can be safely said to have been made voluntarily and without any inducement, threat or promise by any person in authority and to contain true disclosure of what had happened. 16. As regards the evidentiary value of an extra-judicial confession, it was submitted by Mr. Sethi that learned trial court has committed error of law by making the extra-judicial confession as main plank of recording conviction against the appellants which, however, at the most could have been used only to lend assurance to other evidence. 17. Law as regards the evidentiary value of a confession made by accused, judicial or extra-judicial, by now is well settled. A Constitution Bench of the Supreme Court in Haricharan Kurmi v State of Bihar, AIR 1964 SC 1184 , while dealing with the evidentiary value of extra-judicial confession of a co-accused, has opened the judgment with observation that "there is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted." Recently in Sahadevan & anr. v. State of Tamil Nadu, AIR 2012 SC 2435 , a two-Judge Bench of the Supreme Court, comprehensively reviewed the case law on the subject and concluded that an extra-judicial confession is made admissible piece of evidence capable of supporting the conviction of an accused provided the same is made voluntarily and is otherwise found to be truthful. 18. Their lordships in Sahadevan's case have held that it is settled principle of criminal jurisprudence that extra-judicial confession is a week piece of evidence and whenever, upon due appreciation of the entire prosecution evidence, court intends to base conviction on the extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other evidence. 18. Their lordships in Sahadevan's case have held that it is settled principle of criminal jurisprudence that extra-judicial confession is a week piece of evidence and whenever, upon due appreciation of the entire prosecution evidence, court intends to base conviction on the extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other evidence. Upon analysis of the series of judgments of the Supreme Court, their Lordships have stated the principles, which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction in para 22 of the reporting, which reads: 22. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused. The Principles (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial 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. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law." 19. As said above, the extra-judicial confession had been made by A-1 voluntarily and without inducement, threat or promise. Such a confession can be safely relied upon and can support the conviction of the accused. However, as a weak kind of evidence a confession is, learned trial court has looked for the support and corroboration in more than one circumstances emerging from the evidence, which we shall be examining later hereafter. 20. The extra-judicial confession has also been assailed because of its jointness. It is contended that "it was a joint extra-judicial confession attributed to all the three appellants without attributing exact words to either of them". Mr. 20. The extra-judicial confession has also been assailed because of its jointness. It is contended that "it was a joint extra-judicial confession attributed to all the three appellants without attributing exact words to either of them". Mr. Sethi would say that a declaration made by one of the three appellants could not have been used as confession of all the three appellants or even the one who had allegedly made it. This aspect seems to have invited attention of learned trial court too but we, having regard to the law on the point, are not satisfied with the view taken and the manner in which learned court dealt with the same. 21. Learned trial court in this regard has briefly observed that "since A-2 and A-3 staged `bangara' with A-1 after he proclaimed that they had together killed the deceased, his confession was approved by them and so they all confess the guilt of their action". The view taken by learned trial court, firstly, in its factual aspect is not purely in consonance with evidence and secondly, concept of approval by an accused of the confession made by a co-accused is not well known in law. As regards its factual aspect, PW-Mulakh Raj has stated in chief examination that all the accused (appellants) started dancing `bangara' and said that they have revenged death of their brother by killing Tilak Raj. In cross-examination his say is that this was said by accused Karan Singh (A-1). Likewise, in the FIR lodged by PW-Mulakh Raj immediately after the occurrence he had mentioned that Karan Singh had stated that they have killed Tilak Raj and thereby revenged death of their brother Subash. What is thus clear is that A-1 had declared that they have killed the deceased but not that they `together' have killed the deceased. 22. An extra-judicial confession of a co-accused cannot be treated on the same footings nor has the same evidentiary value as the extra-judicial confession of an accused himself has. The confession of a co-accused does not fall within the definition of `Evidence' as provided under Section 3 of the Evidence Act. Section 30 of the Evidence Act, nonetheless, makes it permissible for the court in a joint trial of more than one person to take into consideration a confession made by one of the accused implicating him and some other. 23. Section 30 of the Evidence Act, nonetheless, makes it permissible for the court in a joint trial of more than one person to take into consideration a confession made by one of the accused implicating him and some other. 23. The question about the part, which the confession of a co-accused can play in a criminal trial and the scope of taking into consideration the confession of a co-accused as permissible under section 30 of the Evidence Act came up for consideration of the Constitution Bench of the Supreme Court in Haricharan Kurmi's case (supra). Their lordships have held in para 12 of the reporting that: 12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. 24. The legal position, thus, is that an extra-judicial confession of an accused, if proved to have been voluntarily made and found truthful, reliable and not suffering from any material discrepancy or inherent improbability, can be made the basis of and independently support his conviction though as a matter of prudence, courts generally look for corroborating evidence. On the other hand, confession, judicial or extra-judicial, made by a co-accused neither can be made the basis of nor independently support conviction of any other accused. Court cannot even start with such a confession. However, in a joint trial, confession of a co-accused can be looked into and taken into consideration against another accused only for approval and confirmation, if charge against the other accused is proved from the other evidence led by the prosecution. 25. Court cannot even start with such a confession. However, in a joint trial, confession of a co-accused can be looked into and taken into consideration against another accused only for approval and confirmation, if charge against the other accused is proved from the other evidence led by the prosecution. 25. Having found on appraisal of evidence that a voluntary extra-judicial confession about killing of deceased Tilak Raj was made by A-1 in presence of A-2 & A-3, we have scrutinized the prosecution evidence as regards other circumstances relied upon by the learned trial court in proof of the charge against the appellants: 25(a) Presence of appellants at the place of occurrence: From the evidence of PW-Ashok Kumar, it has been proved that on the day of occurrence he had seen the appellants armed with weapons, A-1 possessing a `Toka', A-2 a hockey-stick and A-3 a `Dah', sitting at the place of occurrence and a little later he had seen the dead body of the deceased lying at that place. He has explained his passing by the place of occurrence saying that at the first time he was on his way to his place of work and later on his way back towards his house after hearing about the death of the deceased, whom he had been waiting for going to their place of work. His testimony would also show that this all had happened around 7 O'clock in the morning. Learned trial court has relied upon the statement of this witness and we are not in disagreement with the learned trial court for any reason, whatsoever. 25(b) First Information Report (FIR): It has been sufficiently proved by the prosecution and has rather remained unrebutted that information about the occurrence was promptly lodged by PW-Mulakh Raj at Police Station, R.S.Pura, FIR came to be registered at 7.40 AM and its copy was received in the office of local Magistrate on the same day. Names of all the accused (appellants) and factum of extra-judicial confession having been made by them were narrated at the time of lodging of the FIR. Prompt lodging of the FIR containing names of the culprits and narration of manner in which confession was made by the appellants, rules out the possibility of any concoction as well as false implication. Names of all the accused (appellants) and factum of extra-judicial confession having been made by them were narrated at the time of lodging of the FIR. Prompt lodging of the FIR containing names of the culprits and narration of manner in which confession was made by the appellants, rules out the possibility of any concoction as well as false implication. 25(c) Arrest of the accused and possession/recovery of weapons: Arrest of all the accused (appellants) on the same day, shortly after the occurrence, from their village, namely, Satrian, where PW-Mulakh Raj had seen them going to after dancing `bangara', neither has nor can be disputed and is proved from the evidence rendered by PW-Rajinder Parsad, SI and PW-Ganesh Dass, ASI and is borne out from the order passed in remand application by the local Magistrate on the same day, which is available on the trial court file. It is proved from the evidence that A-1 and A-3 were arrested by PW-Ganesh Dass and that A-1 (Karan Singh) at that time was in possession of a `toka' and A-3 (Sham Singh) a `dah'. PW-Ganesh Dass had seized the `toka' from the possession of A-1 vide seizure memo Ex.PWGR and the `dah' from the possession of A-3 vide seizure memo Ex.PWGR/1. Likewise, A-2 (Parveen Singh) was arrested by PW-Rajinder Parsad, he was possessing a hockey-stick, which was seized vide seizure memo Ex.PWRP. We, however, have noticed a factual discrepancy in this regard having been committed by the learned trial judge as in the impugned judgment, A-3 (Sham Singh) is stated to have been arrested by PW-Rajinder Parsad and hockey-stick is said to have been seized from his possession vide seizure memo Ex.PWRP, which is contrary to the evidence rendered PW-Rajinder Parsad as he has clearly stated that he had arrested A-2 (Parveen Singh) and recovered the hockey-stick from him vide seizure memo Ex.PWRP. Likewise, in the impugned judgment it is stated that PW-Ganesh Dass had arrested A-1 (Karan Singh) and A-2 (Parveen Singh) and respectively recovered from them `toka' and `dah' vide seizure memos Ex.PWGR & Ex.PWGR/1, which again is contrary to the evidence rendered by PW-Ganesh Dass as he has clearly stated that he had arrested A-1 and A-3 and recovered `toka' and `dah' respectively from them. Discrepancy in the judgment in this regard, however, would not affect the judgment or its result. Discrepancy in the judgment in this regard, however, would not affect the judgment or its result. Appellants have assailed sufficiency of evidence as regards arrest of the appellants and recovery of weapons on the ground that no independent witness to the arrest or seizure have been produced. We, however, do not find any substance in the contention given the promptness in which accused were arrested and recoveries were effected and finding no plausible reason for discrediting the evidence of police personnel as a matter of general rule. 25(d) Blood stains on the weapons of offence: Learned trial court has found that the weapons of offence recovered from accused persons (appellants) were found having stains of human blood. Mr. Sethi submitted in this regard that mere presence of blood stains on the weapons, even if believed, would be of no evidentiary value as there is no link evidence between such blood stains and the place of occurrence or the appellants. Submission of Mr. Sethi, however, does not hold any water because presence of human blood stains on the weapons, which were recovered from possession of the appellants shortly after the occurrence though may not evidence the involvement of the appellants in the occurrence, nonetheless, has important significance in the chain of circumstances established from the evidence. 25(e) Medical evidence: PW-Dr. Baldev Raj Sharma, Medical Officer, posted at PHC R.S.Pura, has rendered evidence to prove that he had performed autopsy on the dead body of the deceased on the day of occurrence, that is, 25.02.1986, at 12 noon and had issued postmortem report, which he has proved as Ex.PWBR. The postmortem report shows that the dead body of the deceased was having as many as 30 injuries of which 28 were incised wounds and 2 were bruises. In his opinion, the death has been caused by shock, which was due to the multiple incised wounds & extensive Hemorrhage from the major vessels & pain and duration of death was within eight hours at the time of postmortem. The Doctor in his cross-examination, nonetheless has obliged the defence by stating that all the incised wounds found on the body of the deceased could have been caused by one sharp edged weapon but has not ruled out the same having been caused by two sharp edged weapons. The Doctor in his cross-examination, nonetheless has obliged the defence by stating that all the incised wounds found on the body of the deceased could have been caused by one sharp edged weapon but has not ruled out the same having been caused by two sharp edged weapons. Besides proving the number and nature of injuries on the dead body and opining about cause of death, the doctor, in particular, has proved that death had occurred within eight hours prior to the time of postmortem, proving in turn that death could have been caused at the time as alleged in the prosecution case. 25(f) Theft of the bicycle and its recovery: Prosecution case, which is also sought to be used as a circumstance in proof of the killing of the deceased by the appellants, also is that the appellants after commission of offence had stolen the bicycle of the deceased, gone by the said bicycle to their village, Satrian and on the same day bicycle was recovered and seized on the basis of a disclosure statement (Ex.PWMR/6) made by A-2, Parveen Singh, from the compound of his house vide seizure memo (Ex.PWMR/7). In proof of the theft of the bicycle, its recovery on the basis of disclosure statement of a-2 and identification, learned trial court has accepted the evidence rendered by PW-Mulakh Raj and PW-Ashok Kumar, who had identified the bicycle after its recovery and has used this as a circumstance in support of guilt of the appellants holding that "the fact that accused party was found riding the bicycle of the deceased immediately after committing his murder is a material circumstance pointing out to the guilt because it cannot be explained by any other reasonable hypothesis than of their guilt." We, however, could not find ourselves in agreement with the finding recorded by the learned trial court as on scrutiny of evidence we have found that evidence is not satisfactory to show that the bicycle, which the appellants were riding on their way towards their village after the occurrence or the bicycle recovered on the basis of disclosure made by A-2-Parveen Singh belonged to the deceased. Nonetheless, we have found that after the occurrence appellants were found going towards their village by a bicycle and on the same day one bicycle was recovered on the basis of the disclosure statement made by appellant-A-2 from his house. Nonetheless, we have found that after the occurrence appellants were found going towards their village by a bicycle and on the same day one bicycle was recovered on the basis of the disclosure statement made by appellant-A-2 from his house. In this context, we have taken note of the evidence rendered by PW-Ashok Kumar, who is the same person who had seen the appellants at the place of occurrence shortly before the occurrence. His say is that he had gone to police station on the next day where Mulakh Raj had identified the bicycle and a memo, Ex.PW AK, was prepared in this regard. Contextually, it is important to note that PW-Mulakh Raj in his testimony has not stated anything as regards identification of the bicycle and the identification memo has been exhibited on the basis of the testimony of PW-Ashok Kumar. Perusal of the identification memo would show that, besides PW-Ashok Kumar, it was witnesses by two witnesses, namely, Mulakh Raj S/o Devi Ditta and Mulakh Raj S/o Girdhari Lal and that it was Mulakh Raj S/O Devi Ditta (not Mulakh Raj S/O Girdhari Lal/brother of the deceased) who had identified the same as his bicycle. What is thus shown by the identification memo is that the bicycle recovered on the basis of the disclosure statement of and from the possession of A-2 belonged to one Mulakh Raj S/o Devi Ditta and there is no evidence to show that the said bicycle belonged to or was used by the deceased on the day of occurrence and was stolen by the appellants after the occurrence. 25(g) Motive: Motive behind killing of the deceased has been traced by learned trial court in the confessional statement of appellant-Karan Singh and no reason for not agreeing with the same has been shown. 26. The extra-judicial confession made by A-1 (Karan Singh) in presence of A-2 (Parveen Singh) and A-3 (Sham Singh) is supported by the series of events, one of them pertaining immediately prior to the occurrence and others following the occurrence. In his extra-judicial confession made in the course of `bangara' dance performed by the appellants near the house of the deceased, A-1 had unambiguously stated that they have revenged killing of their brother by killing the deceased. Shortly before the occurrence, all the appellants were found present at the place of occurrence and were armed with weapons. In his extra-judicial confession made in the course of `bangara' dance performed by the appellants near the house of the deceased, A-1 had unambiguously stated that they have revenged killing of their brother by killing the deceased. Shortly before the occurrence, all the appellants were found present at the place of occurrence and were armed with weapons. The occurrence was quickly followed by the extra-judicial confession of A-1 and lodging of the FIR containing names of the appellants and factum of extra-judicial confession at Police Station, R.S.Pura. Lodging of FIR was shortly followed by arrest of the appellants and recovery of blood stained weapons from them. The death of the deceased was found to be homicidal having been caused by infliction of number of injuries with sharp edged weapon and within the period that covers the time of occurrence. The motive of killing the deceased was also stated by A-1 in his extra-judicial confession. All these events taken together undoubtedly point towards guilt of A-1 in killing of the deceased. 27. Insofar as A-3 (Sham Singh) is concerned, the confessional statement was not made by him and in that initially could have been excluded from consideration. However, even short of the confessional statement, his presence along with the other appellants at the place of occurrence armed with a `dah' before the occurrence and on their way towards their village after the occurrence, performing `bangara' dance along with the other appellants near the house of the deceased and recovery of blood stained `dah' from his possession are the circumstances, which too strongly point towards his involvement in killing of the deceased along with A-1. Extra-judicial confession of A-1 approves and confirms his involvement. 28. However, case of A-2 (Parveen Singh) deserves a distinction from that of A-1 & A-3 and in our considered view his involvement in the act of infliction of injuries on the person of the deceased leading to his death and thereby holding him guilty is not free from reasonable doubt. He indeed was present at the place of occurrence holding a hockey-stick in his possession prior to the occurrence and had been accompanying A-1 & A-3 after the occurrence and had also taken part in the `bangara' dance. He indeed was present at the place of occurrence holding a hockey-stick in his possession prior to the occurrence and had been accompanying A-1 & A-3 after the occurrence and had also taken part in the `bangara' dance. But, evidence rendered by the doctor rules out his involvement in infliction of injuries on the person of the deceased as all the injuries found on the dead body were caused by sharp edged weapon, none of which could have been caused by a hockey-stick. The factums of presence of A-2 with A-1 and A-3 immediately prior to and after the occurrence, without there being any evidence as regards his presence at the time of and his involvement in the act of killing, cannot safely be taken as sufficient evidence of his involvement in commission of offence or sharing a common intention with A-1 & A-3 free of reasonable doubt. Another circumstance which could have been taken into account against him was the factum of recovery of bicycle of the deceased from his possession but as said above the said factum has not been proved and resultantly theft of bicycle of the deceased too is not proved. 29. For all what has been said and discussed above, we find no merit in this appeal to the extent of conviction and sentence of A-1 (Karan Singh) and A-3 (Sham Singh) for offences under sections 302/34 RPC and 4/27 Arms Act and dismiss it accordingly. However, we find merit in appeal to the extent of conviction and sentence of A-2 (Parveen Singh) for all the offences and A-1 and A-3 for offence under section 379 RPC, allow the same, set aside the conviction and sentence and acquit them to that extent. 30. Reference filed by learned trial court stands answered accordingly. 31. Record of the trial court be remitted back along with a certified copy of this judgment in terms of section 425 Cr.P.C. and the bail bonds executed on behalf of appellant nos. 1 & 3 before this court. Learned trial court is directed to execute the sentence against A-1 & A-3, who had been released on bail during pendency of this appeal, for offences under sections 302/34 RPC and 4/27 Arms Act. 32. Disposed of.