JUDGMENT Sanjay Karol, Judge Convict has assailed the judgment dated 7.5.2008, passed by Additional Sessions Judge, Solan, Camp at Nalagarh, in Sessions Trial No.14-NL/07 of 2007, titled as State of Himachal Pradesh v. Shiv Kumar Yadav, whereby appellant-accused (hereinafter referred to as the accused) stands convicted and sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in relation to offence punishable under the provisions of Section 302 of the Indian Penal Code; and to undergo rigorous imprisonment for five years and pay fine of Rs.5,000/-, in relation to offence punishable under the provisions of Section 458 of the Indian Penal Code, in default of payment of fine, accused to further undergo simple imprisonment for a period of one year, in relation to each of the offences. 2. In brief, it is the case of prosecution that accused used to visit Shamshad, tenant of Dildar Mohammad (PW.1), in village Harraipur, Tehsil Nalagarh, District Solan, Himachal Pradesh. Relations between them were not cordial. On 6.6.2007 at about 5.30 a.m., one Rattan Lal came to the house of PW-1 where he noticed Salim lying in a pool of blood. Rattan Lal raised alarm. Salim was immediately rushed to the hospital at Nalagarh, where he was declared dead. Information was passed on by the Medical Officer, Nalagarh, to Police Station, Baddi. Police party, headed by SI R.S. Thakur (Investigating Officer), HHC Jasbir Singh, HC Sewa Singh, Constable Ashok Kumar, rushed to the hospital. Information was recorded in the Daily Diary (Ex. PW-7/A). Inquest report (Ex. PW-2/A) prepared and dead body of Salim (hereinafter referred to as the deceased) sent for postmortem. Statement of Dildar Mohammed (PW-1) father of the deceased, under provisions of Section 154 of the Code of Criminal Procedure (Ex. PW-1/A) was recorded in the hospital. Ruka (Ex.PW-8/A) was prepared and sent to the police station, Baddi, District Solan, H.P., where FIR No.88/07, dated 6.6.2007 (Ex. PW-7/B), under the provisions of Section 302 of the Indian Penal Code, was registered. 3. Police party thereafter proceeded to the spot of crime and conducted necessary investigation. Blood stained bed sheet and other clothes of the deceased were taken into possession. Sample of blood was also collected from the spot. After completing necessary formalities, articles were sent to the Forensic Science Laboratory for analysis from where report (Ex.PW-12/A) was obtained. 3. Police party thereafter proceeded to the spot of crime and conducted necessary investigation. Blood stained bed sheet and other clothes of the deceased were taken into possession. Sample of blood was also collected from the spot. After completing necessary formalities, articles were sent to the Forensic Science Laboratory for analysis from where report (Ex.PW-12/A) was obtained. Blood found on the spot and the clothes was found to be of a human being. Postmortem of dead body was conducted by Dr. Seema Singh Panwar (PW-13) at Civil Hospital, Nalagarh, and report (Ex.PW-13/A) taken on record by the police, which revealed that deceased had died due to strangulation and pneumothorax (stab injury). On suspicion, police arrested the accused on 8.6.2007, who made disclosure statement on 12.7.2007 (Ex. PW-4/A), in the presence of Shri Ram (not examined) and Shyam Lal (PW-4), on the basis of which weapon of offence, i.e. Khukhari and its cover (Ex.PW-5/A and Ex.PW-5/B) were recovered by the police in the presence of Neel Kamal Sharma (PW-5) and Prem Chand. Clothes of the accused, i.e. shirt (Ex.P-6) and Pants (Ex.P-7), allegedly concealed by him, were recovered vide Memo (Ex. PW-6/A) in the presence of Raj Kumar and Nigahu. As per report of the Forensic Science Laboratory (Ex.PW-12/A), human blood was found on Khukhari and its cover. Thus, based on the material, so collected, with the completion of investigation, challan was presented in the Court for trial. 4. Accused was charged for having committed an offence, punishable under the provisions of Sections 302 and 458 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 19 witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication. No evidence was led in defence. 6. Accused specifically pleaded that he was arrested by the police on 7.6.2007; was severely beaten and coerced to sign blank papers. In effect, he pleaded false implication. 7. Trial Court, convicted the accused by simply discussing the evidence and without clearly culling out the circumstances, but can be inferred from the discussion as under :- 1) Disclosure statement (Ex.PW-4/A) recorded in the presence of Shyam Lal and Shri Ram stands substantially proved on record. It is voluntary in nature. In effect, he pleaded false implication. 7. Trial Court, convicted the accused by simply discussing the evidence and without clearly culling out the circumstances, but can be inferred from the discussion as under :- 1) Disclosure statement (Ex.PW-4/A) recorded in the presence of Shyam Lal and Shri Ram stands substantially proved on record. It is voluntary in nature. Based thereupon, weapon of offence, i.e. Khukhari and its cover (Ex.PW-5/A and Ex.PW-5/B), was recovered in the presence of Neel Kamal Sharma (PW-5) and Prem Chand. 2) Link evidence on record establishes blood found on the weapon of offence to be that of the deceased. 3) Even though there was no eye witness to the occurrence of incident, in relation to both the charged offences, but however statement of Dildar Mohammed (PW-1), father of the deceased, with regard to previous instances of accused visiting the house of Shamshad, substantially proved involvement of the accused. 8. Having heard learned counsel for the parties as also perused the record, we are of the considered view that the Court below erred in not correctly and completely appreciating the testimonies of prosecution witnesses. In our considered view, this has resulted into serious miscarriage of justice, inasmuch as the accused, against whom there is no credible evidence, stands convicted for a heinous crime. 9. At the threshold, it be also pointed out that there is no eye-witness to the occurrence of the incident. The least that was expected of the trial Court was to cull out the circumstances linking the accused to the commission of the crime. In the instant case, the Court did not do so. Now if he had doubts about the investigation he could not have convicted the accused on mere suspicion. 10. Surprisingly, Court found that investigation was not conducted properly, inasmuch as involvement of Shamshad in the alleged crime could not be ruled out. 11. In the instant case, it has come on record that on 5.6.2007, after taking dinner, Dildar Mohammed (PW-1) slept in the courtyard of his house alongwith his wife (not examined), two daughters (not examined) and another girl (not examined), whereas his two sons, including deceased Salim, slept inside the house. In the early hours of 6.6.2007, one Rattan Lal (not examined) came and informed him that his son Salim was lying in a pool of blood. An alarm was raised. In the early hours of 6.6.2007, one Rattan Lal (not examined) came and informed him that his son Salim was lying in a pool of blood. An alarm was raised. Salim was rushed to the hospital, where he was declared having been brought dead. Police was informed. SI R.S. Thakur (PW-17), after making entry in the Daily Diary (Ex. PW-7/A), reached the hospital, where he recorded statement of PW-1, under the provisions of Section 154 of the Code of Criminal Procedure (Ex. PW-1/A). 12. According to PW-1, Shamshad, an acquaintance of accused Shiv Kumar, had threatened to kill his family members. It is not that such threats were given in the presence of the accused, who also had threatened to eliminate the family members. If this witness is to be believed, then accused killed the deceased on the asking of Shamshad. 13. We find that in the instant case there is no motive. But then it is a settled law that absence of motive alone is no ground to acquit the accused. 14. Significantly, it has come in the testimony of PW-7 that Shamshad was available and was associated in the investigation for at least three days, prior to his leaving for his native place. He is not an accused in the instant case. If PW-1 is to be believed then Shamshad had to be the main accused. In statement (Ex. PW-1/A), no finger of suspicion is pointed out towards the present accused. Further, according to PW-1, he did not notice anyone enter the room of his house at night. He only “suspects” that “accused murdered the deceased”, on the “asking of Shamshad”. His uninspiring version that both conspired to kill his son, is not supported by any material on record. If he had such suspicion, why did he not disclose it at the first instance? He categorically could not state as to whether accused was seen on the spot at the time of occurrence of the incident. Also his suspicion is not based on any information, as he admits that none had told him about the complicity of the accused and Shamshad in the commission of crime. 15. In the testimony of Dr. Seema Singh (PW-13), it has come on record that deceased died on account of strangulation with right pneumothorax stab injury. Also his suspicion is not based on any information, as he admits that none had told him about the complicity of the accused and Shamshad in the commission of crime. 15. In the testimony of Dr. Seema Singh (PW-13), it has come on record that deceased died on account of strangulation with right pneumothorax stab injury. Prosecution has dwelled upon the theory of accused having murdered the deceased with weapon i.e. Khukhari (Ex. P-4). On record there is no evidence as to how the deceased could have been strangulated. One may only observe that absence of such evidence itself cannot be a ground for acquittal on merits. 16. One finds that prosecution case primarily rests upon two circumstances, i.e. disclosure statement (Ex.PW-4/A) and recovery of weapon of offence (Ex. P-4). Before one deals with the same, one may only, at this juncture, deal with the testimonies of other witnesses. 17. In Court Mustaq Ahmad (PW-2), uncle and Deen Mohammed (PW-3) brother of the deceased had appeared. Conjoint reading of their testimonies would only show that even they had not seen anyone enter or exit the room where deceased was sleeping. In fact PW-3 categorically states that he did not hear any hue and cry. Significantly the mother and sister of the deceased have not been examined. Perhaps they could have thrown some light on the occurrence of the incident. 18. Rattan Lal was the first person to have noticed the deceased lying in a pool of blood. For unexplained reasons, this witness has not been examined in Court. After all, PW-3 admits that Rattan Lal was residing in the same house as a tenant. Did he see the accused on the spot? No. It has not come on record. His testimony was necessary to prove the charge of house trespass and murder. 19. PW-2 does not even remember the contents of documents which the police got signed from him. According to him, he appended signatures on 10-12 occasions. Where are those documents? It remains unexplained. 20. To the benefit of the accused, we notice that SI-R.S. Thakur (PW-17) has deposed that accused had cooperated during investigation. He admits that none had stated to have seen the accused near the house of the deceased at the time and date of occurrence of the incident. He admits not to have recorded statements of any of the tenants or shopkeepers in the vicinity. He admits that none had stated to have seen the accused near the house of the deceased at the time and date of occurrence of the incident. He admits not to have recorded statements of any of the tenants or shopkeepers in the vicinity. Why so? has not been explained. It would have only lent credence to the prosecution version of accused visiting Shamshad, tenant of PW-1. 21. Significantly, PW-1 does not state that accused had come to take the articles of Shamshad, immediately prior to the occurrence of the incident. None has deposed that accused was seen near the place of occurrence of the incident, immediately before or after the commission of the crime. 22. PW-17 states that on 12.6.2007, accused made a disclosure statement (Ex.PW-4/A) in the presence of Shyam Lal (PW-4) and Shri Ram (not examined). Based thereupon, weapon of offence, i.e. Khukhari (Ex. P-4) was recovered in the presence of witnesses Neel Kamal Sharma (PW-5) and Prem Chand (not examined). The witness prepared spot map of the place of recovery of weapon of offence, sealed it and got it sent to the Forensic Science Laboratory for chemical examination. On the basis of disclosure statement, clothes of the accused were also recovered in the presence of Raj Kumar (PW-6). Prosecution has tried to corroborate such version through the testimony of Shyam Lal (PW-4). 23. However, it be only observed that testimony of this witness (PW-4) stands belied by Musafir Yadav (PW-10), according to whom, on 7.6.2007 itself, he alongwith accused and Refiq (PW-18) had gone to the Police Station, where Shamshad was present. This witness, on a particular issue, was declared hostile and cross-examined by the Public Prosecutor, however nothing fruitful could be elicited therefrom. Significantly, it is suggested to this witness by the prosecution that on 7.6.2007 itself, accused had admitted his guilt of having murdered the deceased. Prosecution case, thus, stands totally shattered. If the guilt was admitted on 7.6.2007 itself, then where is the question of accused having made any disclosure statement on 12.6.2007. Significantly, accused was arrested on 8.6.2007, prior to which date, even according to PW-17, there was no material whatsoever against him. Obviously, there is major and material contradiction in the prosecution case. Either the accused was confined to illegal detention, without any basis, or the alleged disclosure statement has been postdated. Significantly, accused was arrested on 8.6.2007, prior to which date, even according to PW-17, there was no material whatsoever against him. Obviously, there is major and material contradiction in the prosecution case. Either the accused was confined to illegal detention, without any basis, or the alleged disclosure statement has been postdated. The contradiction becomes relevant and material in the backdrop of version of PW-1, according to whom threats to eliminate the members of his family were given by Shamshad and not the accused. 24. Factum of disclosure statement made by the accused cannot be said to have been proved by the prosecution, in accordance with law by leading any credible evidence. 25. Law with regard to confessional statement is now well settled. 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. 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] 26. In the instant case, there is serious doubt about the voluntary nature of the alleged confessional statement made by the accused. Such statement was not made immediately after the occurrence of the incident; in the presence of members of the family of the deceased; the landlord of the premises where the accused was residing; or in the presence of persons, who had seen the accused visit the house of PW-1, for taking away the belongings of Shamshad; or in the presence of witnesses whose testimony is unimpeachable. 27. Significantly, weapon of offence was allegedly recovered in the presence of PW-2, who admits that one Prem Chand was also present at that time. 27. Significantly, weapon of offence was allegedly recovered in the presence of PW-2, who admits that one Prem Chand was also present at that time. This Prem Chand has not been examined in Court. We find version of this witness not to be inspiring in confidence at all. His presence on the spot appears to be doubtful. He is employed as a Supervisor in a factory at Barotiwala. He states that the spot where recovery was effected is at a distance of 4-5 kms from Police Station, Baddi. Now, what was this witness doing on the spot of recovery, has not come on record. Both he and PW-17, admitted that in the village, where recovery was effected, Lambardar, Pradhan and Sarpanch were present, yet none were summoned by the police. Why so? has not been explained. Further, this witness states that weapon of offence, after recovery, was sealed in his presence, but then he failed to produce it in Court on the pretence of having misplaced the same. He does not even remember how many seals were affixed by the police. His uninspiring testimony only discredits the credibility of the witness. Hence, his explanation is unacceptable. This we say so also for the reason that he had signed 5-7 documents on that day, which have not been placed on record. 28. By way of link evidence, prosecution tried to prove complicity of the accused in the commission of crime, by placing on record and proving blood stained clothes of the accused. Raj Kumar (PW-6) states that such clothes, i.e. shirt (Ex. P-6) and pants (Ex. P-7) were recovered from the house of Kewal Krishan, who incidentally has not been examined in Court. No doubt, these clothes were seized vide Memo Ex.PW-6/A, but however, from report of Chemical Examiner (Ex. PW-17/A), it is evident that no blood was found on such clothes. At this juncture, it be also observed that as per report of the Chemical Examiner, though human blood was found on weapon of offence, but the result was inconclusive for blood grouping. 29. It is not a case of direct evidence. Prosecution has referred to and relied upon two circumstances, as discussed herein above. 30. Law with regard to circumstantial evidence is now well settled. 29. It is not a case of direct evidence. Prosecution has referred to and relied upon two circumstances, as discussed herein above. 30. Law with regard to circumstantial evidence is now well settled. It is a settled proposition of law that when there is no direct evidence of crime, the guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which the conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with the crime. All the links in the chain of circumstances must be established beyond reasonable doubt, and the proved circumstances should be consistent, only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, the Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence. [See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196 ; Madhu Versus State of Kerala, (2012) 2 SCC 399 ; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622, Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43 ; and Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116 .]. 31. 31. Also, apex Court in Padala Veera Reddy v. State of Andhra Pradesh and others, 1989 Supp (2) SCC 706, Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied : “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order tosustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” (Also see: Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 ; Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259; and Harishchandra Ladaku Thange v. State of Maharashtra, (2007) 11 SCC 436 ). 32. Each case has to be considered on its own merit. Court cannot presume suspicion to be a legal proof. In the absence of an important link in the chain, or the chain of circumstances getting snapped, guilt of the accused cannot be assumed, based on mere conjectures. 33. The apex Court in State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 286, while cautioning the Courts in evaluating circumstantial evidence, held that if the evidence adduced by the prosecution is reasonable, capable of two inferences, the one in favour of the accused must be accepted. This of course must precede the factum of prosecution having proved its case, leading to the guilty of the accused. 34. From the evidence on record, as discussed herein above, it cannot be said that accused trespassed into the house of the complainant with an intent of assaulting any person or/and that he murdered the deceased. 35. Thus, findings of conviction and sentence, returned by the Court below, 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. 36. 35. Thus, findings of conviction and sentence, returned by the Court below, 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. 36. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 7.5.2008, passed by the trial Court in Sessions Trial No.14-NL/07 of 2007, titled as State of Himachal Pradesh v. Shiv Kumar Yadav, is set aside and the accused is acquitted of the charged offences. 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.