JUDGMENT Sanjay Karol, J. Convict/accused has assailed the judgment dated 21/22.7.2008, passed by Addl. Sessions Judge, Fast Track Court, Chamba, Distt. Chamba, H.P., in Sessions Trial No. 20/2008/07, titled as State of Himachal Pradesh vs. Mansa Ram, whereby he stands convicted and sentenced to undergo rigorous imprisonment for life and pay fine of Rs.20,000/- in relation to offence punishable under the provisions of Section 302 of the Indian Penal Code and in default thereof further undergo rigorous imprisonment for a period of six months. 2. Briefly stated, it is the case of prosecution that on 14.6.2007, Sh. Gorakh Ram (PW-1) and his wife Smt. Dayokhadi Devi (PW-2) were working in their fields. In the nearby fields they saw their son Mansa Ram (accused) give beatings to his wife Smt. Hito Devi. When they tried to intervene and rescue her, accused threatened them of dire consequences. As such they left the spot. Later in the evening, accused wrapped Hito Devi in a blanket and carried her to his house, which is adjoining to the house of his parents. Next morning i.e. 15.6.2007, PW-1 heard cries of son of the accused. Hearing the same, he went to the house of the accused where he noticed Smt. Hito Devi lying dead. On his asking, his son Sh. Nidhia Ram (PW-3) informed the local Pradhan Sh. Dev Raj (PW-4), who in turn sent one Sh. Mahajan, member of the samiti to their house. PW-4 informed the police and police party headed by ASI-Anup Katoch (PW-13) reached the spot. Inquest report (Ext. PW-13/B) was prepared. PW-13 also recorded statement (Ext. PW-1/A) of Sh. Gorakh Ram (PW-1) and sent it through Constable Bhagat Ram (PW-9) to Police Station Bharmour, Distt. Chamba, H.P. where HC-Rajinder Kumar (PW-11) registered F.I.R. No. 28/2007, dated 15.6.2007 (Ext. PW-11/A) against the accused, under the provisions of Section 302 of the Indian Penal Code. In the meanwhile PW-13 completed necessary investigation on the spot. Dead body was sent for post mortem which was conducted by Dr. A. K. Kaundal (PW-12) and as per opinion (Ext. PW-12/B), deceased died on account of head injury. 3. Investigation further revealed that in the morning of 15.6.2007 accused left his house in a rush, which fact was noticed by several persons, including Sh. Man Singh (PW-7) and Sh. Nidhia Ram (PW-3). Accused, who was arrested on 16.6.2007, in the presence of Const. PW-12/B), deceased died on account of head injury. 3. Investigation further revealed that in the morning of 15.6.2007 accused left his house in a rush, which fact was noticed by several persons, including Sh. Man Singh (PW-7) and Sh. Nidhia Ram (PW-3). Accused, who was arrested on 16.6.2007, in the presence of Const. Raj Kumar (PW-6) on 17.6.2007 made a disclosure statement (Ext.PW-6/A), which led to recovery of weapon of offence i.e. “Khuti” (Ext. P-2) from an open field, in the presence of PW-1 and PW-7. Memo Ext. PW-1/B was prepared. Report pertaining to weapon of offence was obtained from the Forensic Science Laboratory. Investigation revealed complicity of the accused in the alleged crime. As such, challan was presented in the Court for trial. 4. Accused was charged for having committed an offence punishable under the provisions of Sections 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as fourteen witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up a plea of false implication. He further pleaded, interested witnesses being inimical towards him, and as such having falsely deposed against him. The reason being that he solemnized his second marriage against their wishes. 6. The Court below, primarily on the basis of testimony of PW-1 and PW-2, who witnessed the occurrence of incident, convicted the accused. Hence the present appeal. 7. Having heard learned counsel for the parties as also perused the record, we are of the considered view that findings and judgment in question are not based on correct and complete appreciation of evidence and material placed on record, causing serious prejudice to the accused, resulting into miscarriage of justice. 8. Prosecution heavily relies upon testimonies of Sh. Gorkh (PW-1) and Smt. Dayokhadi (PW-2) to conclusively establish the guilt of the accused, beyond reasonable doubt. These witnesses are parents of the accused. Allegedly they witnessed occurrence of the incident. Further prosecution relies upon disclosure statement made by the accused (Ext. PW-6/A) which led to recovery of weapon of offence. Prosecution does not plead it to be a case of circumstantial evidence. 9. The fact that accused was married to Smt. Hito Devi (deceased) is not in dispute. Allegedly they witnessed occurrence of the incident. Further prosecution relies upon disclosure statement made by the accused (Ext. PW-6/A) which led to recovery of weapon of offence. Prosecution does not plead it to be a case of circumstantial evidence. 9. The fact that accused was married to Smt. Hito Devi (deceased) is not in dispute. The fact that deceased died on 15.6.2007 is also not in dispute. In any event, it stands established through the testimony of Dr. A. K. Kaundal (PW12), who conducted the post mortem and proved report (Ext. PW-12/B). Report reveals that post mortem was conducted on 16.6.2007 at 10.30 a.m. According to the Doctor, probable duration between the time of death and the post mortem was 12 to 24 hours, which impliedly means that deceased died in the early hours of 15.6.2007. This fact knocks down the foundation of the prosecution case. The genesis of prosecution version is rendered to be false. It is the prosecution case that on 14.6.2007 accused gave beatings to his wife in the fields as a result of which she died. It is definitely not the prosecution case that deceased was murdered by the accused in his house. Dead body of the deceased was noticed on 15.6.2007 at about 7.30 – 8.30 a.m. when PW-1 heard cries of a child coming from the house of the accused, who also was seen leave in a rush at that time. This means that deceased would have been murdered in the house some time the previous evening. It is also not the prosecution case that after accused gave her beatings in the fields, deceased was bleeding profusely which was the cause of death. At this juncture, we would like to clarify that this factor has not weighed with us at all in appreciating the testimonies of prosecution witnesses, which we have otherwise evaluated on the basis of settled principles of law. 10. That there was prior animosity between the accused and his family members stands established on record through the testimonies of Gorakh Ram (PW-1), Dayokhadi (PW-2), Nidhia Ram (PW-3), Dev Raj (PW-4) and Man Singh (PW-7). In one voice they admit that since accused had married the deceased, family was not happy. In fact accused was not on talking terms with his family. PW-7 in no uncertain terms has disclosed real reason of discord. In one voice they admit that since accused had married the deceased, family was not happy. In fact accused was not on talking terms with his family. PW-7 in no uncertain terms has disclosed real reason of discord. Deceased belonged to a different caste and such marriage was not palatable to the family of accused. 11. According to PW-1, he and his wife (PW-2) were working in the fields when he heard noise coming from the fields of the accused. Though he is not specific about the date but refers to the incident of 14.6.2007. He noticed Hito Devi was crying. He went to the spot. She told him that accused had beaten her. Accused had inflicted an injury with a “Khuti”(small digging instrument). He inquired the cause of such beatings from the accused. Even he was threatened of dire consequences. As such, he left the spot. Accused also left. Later on at 7.30 p.m. he came to the fields, lifted the deceased by wrapping her in a blanket and took her home. Next morning at about 7.00 a.m. accused left his house when this witness heard cries of a child. Both he and his wife went inside the house of the accused where they noticed Hito Devi lying dead covered with a blanket. She had blue marks all over her face. On first brush, deposition appears to be inspiring in confidence and the witness worthy of credence and trust. But it is not so. Close scrutiny of his cross examination reveals that accused was residing separately from his family for last 10 – 12 years. Also they were not on talking terms with each other. He admits that accused solemnized his second marriage with the deceased which was matter of discord. He admits not to have seen the accused hit the deceased with a “Khuti”. He admits that he only heard cries of the deceased. But contradicts his earlier version by admitting that the place where accused and the deceased were working in the fields was not even visible from the place where he was working in his fields. He further contradicts his earlier version by stating that “we” (here he refers to himself and his wife) “did not go” where accused and Hito Devi were working, in their fields but only “shouted from our fields as to why he was beating her”. He further contradicts his earlier version by stating that “we” (here he refers to himself and his wife) “did not go” where accused and Hito Devi were working, in their fields but only “shouted from our fields as to why he was beating her”. He states that his fields are at a distance of about 4 – 5 furlongs. Now if this witness is to be believed, he did not see the accused give beatings to the deceased. His fields are at a distance of 4 – 5 furlongs, which were not visible from the place of occurrence, hence the question of deceased disclosing to him that accused had given her beatings does not arise at all. He does not advance the case of prosecution at all. 12. Close scrutiny of testimony of Smt. Dayokhadi (PW-2) reveals that she has given a totally different version. She states that accused gave blows to the deceased with hands and “khuti”, but PW-1 only refers to “khuti”. She states that she went to rescue the deceased but retrieved as accused threatened her with dire consequences. Now noticeably this version of her stands contradicted by her husband (PW-1) according to whom “he” had gone and not his wife. Also she contradicts the version of her husband by stating that accused left his house next morning at 8.30 a.m. According to PW-1 accused left at 7.00 a.m. Significantly she states that whole night deceased was crying in pain. But still she did not do anything to ensure comfort and medical help. 13. More importantly, when cross examined, she contradicts her own version by stating that on the date of incident, family had gone to take a holy dip at Mattan and it took them three days to reach there. Now if this witness was away for three days then obviously her version of having gone to rescue the deceased from the hands of the accused is false and incorrect, more so, in the light of her own admission that “she did not see the accused give beatings to the deceased”. Her version about the accused giving beatings to the deceased on an earlier occasion stands contradicted by Pradhan Sh. Dev Raj (PW-4) according to whom, prior complaint was received with regard to a quarrel which took place between the accused and his parents – not the deceased. Her version about the accused giving beatings to the deceased on an earlier occasion stands contradicted by Pradhan Sh. Dev Raj (PW-4) according to whom, prior complaint was received with regard to a quarrel which took place between the accused and his parents – not the deceased. Later on she states that she saw the accused leave his house after giving beatings to the deceased. It appears that she is not clear herself as to whether beatings were given once or twice i.e. in the fields on 14.6.2007 or in the house in the morning of 15.6.2007. 14. Contradictions in the testimony of these witnesses to our mind are major, grave and serious, rendering their version to be absolutely uninspiring in confidence, impeaching their credence and worthiness. 15. According to PW-1, accused gave beatings to the deceased in the fields on 14.6.2007 whereas according to PW-2, beatings were also given in the house on 15.6.2007. Significantly in the statement (Ext. PW-1/A) there is no reference of any beatings given on 15.6.2007. It has come on record through the testimony of PW-1 that 15 – 20 families reside in the village. Surprisingly, prosecution has not associated any one of such families during investigation, not even Sh. Mahajan who was sent by the Pradhan. The alleged incident took place in broad day light, in an open place. Surely it must have been noticed by someone. We find uninspiring testimonies of PW-1 and PW-2 to be further contradicted by Dev Raj (PW-4) according to whom PW-1 had disclosed to the police that “Mansha Ram killed his wife during night”. The confusion with regard to timings of assault is thus compounded by this witness. 16. Prosecution heavily relies upon testimony of Sh. Nidhia Ram (PW-3) to establish that he saw the accused leave his house at about 8.00 a.m. Conviction is sought on the basis of such conduct. One may only observe that this witness is none other than brother of the accused. Apart from being inimical he is an introduced witness. His statement was never recorded by the police, as is so admitted by him. Hence his testimony does not inspire confidence. 17. When we scrutinize the testimony of Sh. Dev Raj (PW4), we find that he materially contradicts other prosecution witnesses. According to him, after Sh. Apart from being inimical he is an introduced witness. His statement was never recorded by the police, as is so admitted by him. Hence his testimony does not inspire confidence. 17. When we scrutinize the testimony of Sh. Dev Raj (PW4), we find that he materially contradicts other prosecution witnesses. According to him, after Sh. Nidhia Ram (PW-3) informed him about the death of deceased, he went to Police Post, Gehra where he reported the matter and then returned with the police to the village. But according to ASI-Anup Katoch (PW-13) information was supplied to him by this witness not in person, but on telephone. Significantly no record pertaining to telephone calls is placed on record. Also PW-13 admits not to have recorded the statement of Sh. Dev Raj (PW-4). Why so? has not been explained. After all he was the first informant. Without recording information how could the police party leave Police Post Gehra, where PW-13 was posted, has not been explained. He further admits that at the time of receipt of information from Sh. Dev Raj, he was at a distance of 25 k.m. Obviously, either of the witnesses are lying. 18. To prove the charge of murder, prosecution further heavily relies upon disclosure statement (Ext. PW-6/A) made by the accused in the presence of PW-13, witnessed by Const. Raj Kumar (PW-6) and Sh. Gorakh Ram (PW-1), which led to recovery of weapon of offence. But PW-1 does not state such fact in Court. Be that as it may, though PW-6 states that statement was made on 17.6.2007, but later on clarifies that “accused was interrogated for 4-5 days by the police and thereafter accused made the disclosure statement”. If accused was arrested on 16.6.2007, as is so deposed by PW-13 then obviously Ext. PW-6/A could not have been recorded on 17.6.2007. It is nobody’s case that prior to 16.6.2007 accused was interrogated or was in the village. Further this witness admits that village Gehra is inhabited. Why is it that no independent witness from the village was associated by the police has not been explained by the prosecution. That apart, even Sh. Dev Raj, who happened to be close to PW-1, was not associated at that point in time. Further this witness admits that village Gehra is inhabited. Why is it that no independent witness from the village was associated by the police has not been explained by the prosecution. That apart, even Sh. Dev Raj, who happened to be close to PW-1, was not associated at that point in time. At this juncture it would be beneficial to notice the version of PW-2 according to whom, accused left his house in the morning of 15.6.2007 and returned only after three days. Significantly prosecution has accepted this version to be true as she was not cross examined on this point at all. 19. According to Sh. Man Singh (PW-7), on 18.6.2007 accused led the police to the place where weapon of offence was concealed which was recovered in his presence and seized vide memo (Ext. PW-1/B) upon which he appended his signatures. We find testimony of this witness not to be inspiring in confidence for two reasons. Firstly, he is not a resident of the village in question. His house is at a distance of one kilometer from the house of the accused. He had no reason to be on the spot of recovery of weapon of offence on 18.6.2007. Secondly he states that recovery was effected from the fields of PW-1 possessed by the accused which version stands materially contradicted by PW-1 himself, according to whom, weapon of offence was recovered from the “house” of the accused. He is categorical about this fact. Presence of PW-1 at the time of recovery is admitted by PW-13. Thus the circumstance of recovery of weapon pursuant to recording of disclosure statement cannot be said to have been proved. 20. It has not come on record that there was any animosity between the accused and the deceased. In fact accused had no motive to kill his wife. 21. Hence we find the very genesis of the prosecution story of the accused having given beatings to his wife in the fields on 14.6.2007, which resulted into her death, not to have been established on record. Further, it cannot be said that the incident was actually witnessed by PW-1 and PW-2 as the prosecution wants us to believe. Their version that beatings were given in the fields on 14.6.2007 is absolutely uninspiring in confidence and unworthy of credence. In fact, it stands materially contradicted and falsified. Further, it cannot be said that the incident was actually witnessed by PW-1 and PW-2 as the prosecution wants us to believe. Their version that beatings were given in the fields on 14.6.2007 is absolutely uninspiring in confidence and unworthy of credence. In fact, it stands materially contradicted and falsified. They are themselves not sure as to whether accused had murdered his wife in the fields or in his house. 22. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 23. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 21/22.7.2008, passed by Addl. Sessions Judge, Fast Track Court, Chamba, Distt. Chamba, H.P., in Sessions Trial No. 20/2008/07, titled as State of Himachal Pradesh vs. Mansa Ram, is set aside and the accused is acquitted of the charged offence. He be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to him. Release warrants be prepared accordingly. Appeal stands disposed of, so also pending application(s), if any.