Judgment Rajiv Sharma, J. These criminal appeals are instituted against the judgment 15.11.2007 rendered by learned Additional Sessions Judge, Sirmaur at Nahan, in Sessions Trial No.10-N/7 of 2004, whereby the accused/appellants (hereinafter referred to as the “accused” for the sake of convenience) were convicted and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.10,000/- each and in default of payment of fine to further undergo imprisonment for a period of one year each under Section 302 read with Section 34 of the Indian Penal Code. However, the accused were acquitted under Sections 382 and 201 read with Section 34 of the Indian Penal Code. 2. Since, common questions of law and facts are involved in both the appeals, the same were taken up together for hearing and are being disposed of by a common judgment. 3. The case of the prosecution, in a nut-shell, is that deceased Chinta Lal was younger brother of PW6 Brij Lal. Chinta Lal used to drive vehicle bearing registration No.HP-01-1482 owned by one Rakesh Sharma. On 24.12.2003 at about 5 p.m., when PW6 Brij Lal along with PW7 Jagdish was sitting in the said vehicle at Darlaghat, the accused came there and told them that they wanted to hire a vehicle for Solan. The fare was settled at Rs.900/-. PW6 Brij Lal called Chinta Lal from the office of Taxi union. The accused told that they have to go via Shimla and on the way two ladies and two children were to be picked up. Chinta Lal told them that the fare would be at Rs.950/-. Thereafter, both the accused went away in the said vehicle driven by Chinta Lal and at a little distance, another accused, whose face was muffled also sat in the vehicle. During night, said vehicle passed through the Giripul towards Rajgarh. An entry was made at barrier by PW4 Constable Rajinder Kumar in the register, Ext. PW4/A. The vehicle was also noticed at bus stand Rajgarh by PW5 Manjeet Singh, who was deputed on patrolling duty at Rajgarh Police Station at about 1:30 a.m. He checked the driving license of the driver and the driver disclosed his name to be Chinta Lal. Thereafter, the vehicle went ahead. However, Chinta Lal did not return back to Darlaghat till 25.12.2003. PW6 Brij Lal searched him, but of no avail. Thereafter, the vehicle went ahead. However, Chinta Lal did not return back to Darlaghat till 25.12.2003. PW6 Brij Lal searched him, but of no avail. Thereafter, on 26.12.2003, he lodged report in the Police Station, Darlaghat vide Ext. PW25/A. 4. According to prosecution on 29.12.2003, at about 9 a.m., PW1 Arun Kumar noticed a human body lying underneath the bridge at Chhichhria. He gave the information to PW2 Parsani Devi. She also noticed the body and informed the police telephonically, on the basis of which daily diary rapat was recorded by PW31 Ashok Kumar, the then MHC, Police Station, Rajgarh vide Ext. PW31/A. On receipt of information, PW36 ASI Krishan Kumar visited the spot and took into possession dead body vide memo Ext. PW2/A in the presence of PW2 Parsani Devi. He prepared the site plan Ext.PW36/D and took the photographs of the dead body, Ext. PW 36/B-1 to Ext. PW36/B-12. The inquest report was prepared vide Ext. PW36/A. The post-mortem on the body of the deceased was conducted by PW-21 Dr. Rita Nayar, the then Medical Officer, Civil Hospital Rajgarh, vide post-mortem report Ext.PW21/A. As per her opinion, the deceased died as a result of neurogenic shock and asphyxia (cause severe hit over external genetalia and injury over thyroid cartilage) leading to cardio respiratory failure. Since the dead body was not identified by anyone, notice was published in the daily newspaper for identification of the dead body. On reading the said publication, PW-6 Brij Lal went to Rajgarh and identified the dead body to be that of his brother Chinta Lal, vide memo Ext.PW6/A. Statement of PW6 Brij Lal was recorded under Section 154 Cr. P.C. vide Ext. PW6/B by PW36 ASI Krishan Kumar, on the basis of which FIR Ext. PW29/A was recorded at Police Station, Rajgarh by PW29 HC Jaswant Singh, the then Investigating Officer, Police Station, Rajgarh. The site plan was prepared vide Ext. PW36/C. After about 8 or 10 days PW-6 Brij Lal read the news item in a paper about theft of a vehicle from Jubbal, which met with an accident near Sataun, occupied by three persons. In the said accident, one person died and second person sustained fracture and the third one ran away from the spot. PW6 Brij Lal visited the Police Station, Darlaghat from where SHO, P.S. Darlaghat made a telephonic call to Dy. In the said accident, one person died and second person sustained fracture and the third one ran away from the spot. PW6 Brij Lal visited the Police Station, Darlaghat from where SHO, P.S. Darlaghat made a telephonic call to Dy. S.P. and Brij Lal came to know that the person, whose leg was fractured, was admitted at Nahan Hospital. PW6 Brij Lal visited the Hospital at Nahan where the accused Inder Singh was admitted. On seeing him, PW6 Brij Lal got suspicious that he was the same person who had hired the taxi of Chinta Lal at Darlaghat. PW6 Brij Lal made a telephonic call to PW7 Jagdish and called him to Nahan. PW7 Jagdish along with Rakesh Sharma, owner of vehicle No.HP-01-1482, went to Nahan and identified the accused Inder Singh to be the same person, who hired the taxi from Darlaghat. Thereafter, PW6 Brij Lal contacted PW14, Gurmeet Singh the then SDPO, Rajgarh and informed him that the accused Inder Singh admitted in the Hospital was one of the persons, who had hired the taxi from Darlaghat. PW14 Gurmeet Singh deputed PW36 ASI Krishan Kumar to carry out the investigation. PW36 ASI Krishan Kumar went to Nahan where PW6 Brij Lal and PW7 Jagdish along with Rakesh Sharma and one Devi Roop met him. They went to the hospital at Nahan where the accused Inder Singh was identified by Jagdish vide memo Ext. PW6/C. The accused Inder Singh was admitted in the Zonal Hospital, Nahan on 10.1.2004 after having referred from civil hospital, Paonta Sahib. Thereafter, he was referred to IGMC, Shimla on 14.1.2004 at about 10 p.m. vide case summary PW13/A. 5. Further case of the prosecution is that on 2.1.2004 at about 5:30 p.m. PW10 Ram Pal came to know that one vehicle had met with an accident near a tree in village Bangran. He visited the spot and found vehicle bearing registration No. HP-17-4443 in the accidental condition near peepal tree which was lying abandoned there. No one was in the aforesaid vehicle. PW10 Ram Lal informed the Police. PW12 HC Keshwa Nand visited the spot and took the vehicle in possession vide memo Ext. PW10/A. He also noted down the chassis and engine number of the vehicle. Thereafter, the information about the accident was supplied to all the Police Stations of District Sirmour. No one was in the aforesaid vehicle. PW10 Ram Lal informed the Police. PW12 HC Keshwa Nand visited the spot and took the vehicle in possession vide memo Ext. PW10/A. He also noted down the chassis and engine number of the vehicle. Thereafter, the information about the accident was supplied to all the Police Stations of District Sirmour. According to prosecution, on 28.1.2004, PW36 ASI Kishan Kumar along with PW6 Brij Lal, and Rakesh Sharma visited Police Station, Rajgarh. The said vehicle was identified by Rakesh Sharma to be owned by him. It was taken into possession by PW36 ASI Krishan Kumar. The photographs of the vehicle were taken by PW15 Harish Kumar vide Ext. PW15/A and Ext. PW15/B. On close look of the vehicle, it was noticed that though the vehicle was bearing registration No.HP-17-4443, but it was having registration No. HP-01-1482 faintly written on all the glasses. The vehicle was got mechanically examined from PW26 HHC Subhash Chand, who also found number HP-01-1482 to be inscribed on the window panes. He also noted the engine and chassis number of the vehicle vide Ext. PW26/A and Ext. PW26/B. He prepared the report Ext. PW26/C. The accused Inder Singh was arrested and while in custody, he made a disclosure statement vide Ext. PW3/B on 21.4.2004 that he could identify the place where the deceased Chinta Lal was murdered and also the place where his dead body was kept concealed as well as the place where he had thrown the wire with which the deceased was murdered. The accused Inder Singh identified the place where the dead body was kept concealed vide memo Ext. PW3/D. He also got recovered the wire Ext. P-1 from a place at a height of 5-6 meters on the upper side of the road, which was taken into possession vide memo Ext. PW3/C. It was sealed in a parcel with seal impression “H”. The wire Ext. P-1 was shown to PW21 Dr. Rita Nayar on 19.7.2004, who opined that ligature mark present on the right side of the leg of the deceased and fracture of thyroid cartilage could be caused by wire Ext. P-1 vide opinion Ext. PW 21/D. The wire Ext. P1 was also got checked from PW23 Anokhi Ram, who found the same to be of scooter gear/clutch wire vide certificate Ext. P-1 vide opinion Ext. PW 21/D. The wire Ext. P1 was also got checked from PW23 Anokhi Ram, who found the same to be of scooter gear/clutch wire vide certificate Ext. PW23/A. The accused Rajesh Kumar was arrested on 26.4.2004 and was produced in a muffled condition before the Judicial Magistrate, Sonipat and thereafter, before Judicial Magistrate, 1st Class, Rajgarh, from where he was sent to judicial custody. On 3.5.2004, test identification parade of accused Rajesh Kumar was conducted at Model Central Jail, Nahan in the presence of PW28 H.S. Verma, the then Judicial Magistrate, 1st Class, Nahan after recording his consent vide statement Ext. PW28/A. The accused Rajesh Kumar was identified by PW6 Brij Lal and PW7 Jagdish to be one of the persons who had hired the taxi of Chinta Lal at Darlaghat on 24.12.2003. PW28 H.S. Verma prepared the proceedings of the identification parade vide Ext. PW28/D and Ext. PW28/E along with list of non-suspect persons Ext.PW28/F and sent the same to the Additional Chief Judicial Magistrate, Rajgarh, vide order dated 3.5.2004, Ext. PW28/G. The accused Rajesh Kumar on 5.5.2004 while in police custody made a disclosure statement that he could identify the place where the deceased was killed as well as the place where the dead body of the deceased was kept concealed. He also disclosed that he could identify the place where the number plate of the vehicle was changed to HP-17-4443 vide Ext. PW9/A in the presence of PW9 Manish Thakur. The accused Rajesh Kumar identified the place where the dead body was kept concealed vide memo Ext. PW8/B and the place where the deceased was killed vide memo Ext. PW8/A. Accused Rajesh Kumar was medically examined by PW-22 Dr. Lalit Gupta on 28.4.2004 vide MLC Ext. PW22/B. The scar marks were found on his face and right side of the forehead and he was referred to the zonal hospital, Nahan for opinion. On 6.5.2004, accused Rajesh Kumar was medically examined by PW27 Dr. V.K. Mishra, the then professor and head of the department of Forensic Medicines, IGMC Shimla, who opined that age of injury No. 1, which was below the centre of lower lip, was between 2 to 6 months and it was lacerated wound, whereas injury No. 2, which was a scar mark over right side of the forehead, was also more than six months old. He issued report Ext. He issued report Ext. PW27/B. Number plates of the vehicle were taken into possession vide Ext. PW6/D in the presence of PW6 Brij Lal. The abstract of the register Ext.PW17/A was taken into possession from PW17 Rajinder Sharma, Manager in Singh Guest House, Rohru, whereas abstract of the register Ext. PW16/A was taken into possession from PW16 Layak Ram, Manager, Hatkoti Mandir. Rakesh Sharma produced duplicate documents of the vehicle which were taken into possession vide memo Ext. PW19/A. The Investigation was completed and after completing all the codal formalities, the police filed the challan in the Court. 6. The prosecution examined as many as 36 witnesses in order to support its case. Statements of the accused under Section 313 Cr. P.C. were recorded. They pleaded innocence and claimed trial. 7. Learned Additional Sessions Judge sentenced and convicted the accused under Section 302 read with Section 34 of the Indian Penal Code and acquitted them under Sections 382 and 201 read with Section 34 of the Indian Penal Code, vide judgment dated 15.11.2007, as stated hereinabove. Hence, the appeals. 8. Mr. P.S. Goverdhan and Mr. Rakesh Manta, learned counsel for the accused have vehemently argued that the prosecution has failed to prove its case against the accused. 9. Mr. Parmod Thakur, learned Additional Advocate General has supported the impugned judgment dated 15.11.2007. 10. We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 11. PW1, Arun Kumar, testified that he was student of ninth class. On 29.12.2003, at about 9.00 A.M., when he went to bridge to answer call of the nature, he saw a human body. He got frightened and went to the Pradhan, Parsani Devi, who was waiting for a bus. In cross-examination, he deposed that human body was lying at a distance of about 100 meters from where Parsani Devi was standing. The dead body was not covered. The bridge was on the main road side. 12. PW2, Parsani Devi, deposed that on 29.12.2003, at about 9.00 A.M., she was standing on the road near her gate and was waiting for a bus to go to Rajgarh. Arun Kumar came to her and told her that a person was sleeping on the bridge. She went near the bridge and called him, but she did not get any response. Arun Kumar came to her and told her that a person was sleeping on the bridge. She went near the bridge and called him, but she did not get any response. Thereafter she went to Chhichhria and informed the police on telephone from the house of one Bhim Singh. The police came from Rajgarh Police Station. The police got clicked the photographs and prepared the site plan. The police also took into possession dead body in her presence and Om Parkash vide memo, Ext.PW2/A. On 19.7.2004, she was also associated in the investigation at Rajgarh Hospital. The Doctor was shown a wire, which was taken out of the parcel in her presence. The same was resealed in her presence after showing the same to the doctor, vide memo Ext.PW2/B. In her cross-examination, she deposed that the dead body was lying at a distance of 20-25 steps from her gate. The dead body was lying with his face upwards. The police reached the spot at about 10.30 A.M. On 19.7.2004, she had gone to the Hospital in connection with her own work. 13. PW3, Partap Singh, deposed that on 29.12.2003, he was associated in the investigation. The police took into possession dead body from Chhichhria, which was lying on a bridge, vide memo Ext.PW2/A. The police also prepared panchnama on the spot vide Ext.PW3/A. Thereafter, on 21.4.2004, he remained associated in the investigation along with Asha Parkash. On that day, the police brought the accused Inder Singh at Police Station, where he made a disclosure statement that he could identify the place where the deceased Chinta Lal was murdered and where the flexible wire, with which he was strangulated, was thrown. He also disclosed that he could identify the place where they kept the dead body of the deceased. The disclosure statement was reduced into writing vide Ext.PW3/B. Thereafter, a vehicle No. HP-16-0793 was hired. Accused Inder Singh led them to the place where the wire was thrown. The police prepared the site plan on the spot. The wire was thrown at a height of 5-6 metres on the upper side of the road from where the same was recovered. The wire, Ext.P1 was taken into possession vide memo Ext.PW3/C. Thereafter, the accused Inder Singh led them to the place where they had kept the dead body of the deceased. Memo Ext.PW3/D was prepared to this effect. The wire was thrown at a height of 5-6 metres on the upper side of the road from where the same was recovered. The wire, Ext.P1 was taken into possession vide memo Ext.PW3/C. Thereafter, the accused Inder Singh led them to the place where they had kept the dead body of the deceased. Memo Ext.PW3/D was prepared to this effect. In cross-examination, he deposed that the Police Station, Rajgarh was situated at a distance of 13 kms from his house. He admitted that Ragarh is thickly populated area. He also admitted that 2-3 villages fall on the way to Police Station Rajgarh from their village. He had seen Investigating Officer Krishan Kumar so many times. He also knew that Krishan Kumar was posted as ASI in Police Station, Rajgarh. He admitted that on 21.4.2004, he called him and Asha Parkash through Constable. They reached the Police Station at about 10.45/11.00 A.M. He did not know since when Inder Singh was in police custody. The ASI told them that he was the person, who was connected with the recovery of dead body on 29.12.2003. Thereafter, the accused made a disclosure statement, Ext.PW3/B. It took about one hour to complete the formalities at Police Station, Rajgarh. He had not seen the accused Inder Singh in the area of Rajgarh prior to that day. The police had decided in the Police Station that the place where the deceased was killed was to be visited. According to him, he had already seen that place. The wire, Ext.P1 was lifted by Krishan Kumar, though the accused was also with him. Thereafter, they came back to the Police Station, Rajgarh. Ext.PW3/B was prepared in the Police Station and rest of the documents were prepared at the spot. 14. PW4, Constable Rajinder Kumar, testified that on 24/25th December 2003, he was deputed at Giripul barrier. The entries of the vehicles, which passed through the barrier, were recorded in the register. According to him, in intervening night of 24th and 25th December 2003, vehicle No. HP-01-1482, which had come from Darlaghat passed through the barrier as per entry made at Sr. No.1 of the register. Three persons excluding driver were sitting in the vehicle. Abstract of the register was Ext.PW4/A. He admitted in cross-examination, that the factum of three persons excluding the driver were sitting in the vehicle was not mentioned in the register. No.1 of the register. Three persons excluding driver were sitting in the vehicle. Abstract of the register was Ext.PW4/A. He admitted in cross-examination, that the factum of three persons excluding the driver were sitting in the vehicle was not mentioned in the register. Name of the driver was shown as Chaman Lal in Ext. PW4/A. He admitted that there was overwriting on last three entries of the page. 15. PW5, Manjeet Singh, testified that in intervening night of December 24th and 25th, 2003, he was on patrolling duty at Bus Stand, Rajgarh. At about 1.00/1.30 A.M., a white coloured vehicle came from Giripul side. He stopped the vehicle. He asked the driver where he was going. He replied that they were coming from Darlaghat and going one curve ahead. Two persons were sitting on the back seat and one was sitting on front seat with the driver. The driver revealed his name to be Chinta Lal and showed his driving licence. He compared the photograph with him. In cross-examination, he deposed that on that day, they checked about 10-15 vehicles. He could not say how many persons were sitting in those vehicles as those vehicles were owned by the local residents. They used to check outsiders’ vehicles. He admitted that they used to maintain the record of the checking. However he had not brought the same in the court. He admitted that many vehicles had come from outside during the period of three months. He could not say how many persons were sitting in those vehicles. 16. PW6, Brij Lal, deposed that the deceased Chinta Lal was his younger brother. Chinta Lal used to drive vehicle No.HP-01-1482 owned by Rakesh Sharma. On 24.12.2003, at about 5.00 P.M., he along with Jagdish was sitting in the vehicle. Two persons came and told them they wanted to hire a vehicle for Solan. They fixed the fare at Rs.900/-. They told them that they would inform them within ten minutes. After ten minutes, they came back and agreed to hire the vehicle. Then they made them to sit in the vehicle and he went to Taxi Union to call his brother. He brought his brother and those two persons told them that they had to go via Shimla and on the way two ladies and two children would be picked up at Totu. Then they made them to sit in the vehicle and he went to Taxi Union to call his brother. He brought his brother and those two persons told them that they had to go via Shimla and on the way two ladies and two children would be picked up at Totu. His brother told them that fare of Rs.900/- was on the lower side and asked them to pay Rs.950/-. They agreed. Thereafter, he took the vehicle from that place and a little ahead, a person whose face was muffled, sat in the vehicle. Out of those two persons, one was wearing grey shirt and black/dark coloured pants. His age was 20-22 years and he was having white complexion. His face was round and his height was about 5½ feet. He used to speak Hindi. He was clean shaven having small moustaches. The other person was wearing grey coloured jacket. He was also 22-23 years. His height was 5½ feet and face was round. He also used to speak Hindi. They were looking like “Bhaiya”. His brother did not return back till 25.12.2003. He searched for him, but he could not trace him. On 26.12.2003, he went to Police Station and reported the matter vide rapat No.12 dated 26.12.2003. On 30.12.2003, a news item was published regarding recovery of a dead body at Rajgarh. He went to Rajgarh and after seeing the dead body, he identified the same to be of his brother. The police got conducted most-mortem on the body of deceased and handed over the same to him vide memo Ext.PW6/A. The police recorded his statement under Section 154 Cr.P.C. Ext.PW6/B. Thereafter, he came back to his home and remained there for about 8-10 days. When he went to Darlaghat, he read a news item in a newspaper about theft of a vehicle from Jubbal, which met with an accident near Sataun, which was occupied by three persons. It was also mentioned in the news-item that one person died in the accident, the leg of other person got fractured and one of them fled away. He went to SHO, Police Station, Darlaghat along with newspaper. The SHO, Police Station, Darlaghat made a telephonic call to Deputy Superintendent of Police, Rajgarh. After telephonic call, he came to know that person, whose leg was fractured was admitted at Nahan Hospital. He alone visited Nahan Hospital. He went to SHO, Police Station, Darlaghat along with newspaper. The SHO, Police Station, Darlaghat made a telephonic call to Deputy Superintendent of Police, Rajgarh. After telephonic call, he came to know that person, whose leg was fractured was admitted at Nahan Hospital. He alone visited Nahan Hospital. He got suspicious on seeing that person. He was the same person, who had hired taxi at Darlaghat. Thereafter, he made a telephonic call to Jagdish and called him. Rakesh Sharma also came with Jagdish. Jagdish identified that person to be the same, who hired taxi from Darlaghat. They sent a message to Police Station, Rajgarh and the police came. He and Jagdish identified the person in the presence of police vide memo Ext.PW6/C. Thereafter, they came back to Darlaghat. After 5-6 days, though he did not remember the date, Rakesh Sharma telephonically told him at his residence that there was a vehicle at Sataun, which was to be identified. The vehicle was parked at the police post. When he reached there, he saw that the number plate of the vehicle was changed and another number plate bearing No. HP-17-4443 was affixed. On close look of the vehicle, he found the number of the vehicle H.P.-01-1482 faintly written on all the glasses. The vehicle was identified by Rakesh Sharma, which was being driven by deceased Chinta Lal. After some time, police called them to identify third person, who was apprehended by the police. They identified third person, at Model Central Jail, Nahan in the presence of Judicial Magistrate. The third person also threatened to kill him in the presence of Judicial Magistrate. He handed over the newspaper to the police. A memo Ext.PW6/D was prepared regarding identification of number plate HP-17-4443. Thereafter, he identified photograph of the third person at Police Station, who was one of those three persons. The police of Rajgarh also visited the spot at Darlagaht. The police also prepared the site plan, from where the taxi was hired. In cross-examination, he deposed that Jagdish was from his village. Though, he was not related to him, but they had friendly relations. On that day, he was sitting in the taxi by chance. Neither he nor Jagdish knew the persons, who came to them. They had talked to him for about 2-3 minutes. After settling the fare, they both boarded the vehicle and sat on the back seat. Though, he was not related to him, but they had friendly relations. On that day, he was sitting in the taxi by chance. Neither he nor Jagdish knew the persons, who came to them. They had talked to him for about 2-3 minutes. After settling the fare, they both boarded the vehicle and sat on the back seat. The third person sat in the vehicle on front seat a little head, i.e. about 50-100 metres. He had observed identification marks of those persons during 2-3 minutes. He did not note down identification marks of those persons in the diary. He had not disclosed identity of those three persons in his report lodged on the next day. After recovery of the dead body of his brother, he disclosed the identity of those persons in his report, Ext.PW6/B. He did not disclose the fact that the vehicle firstly went to Totu. He admitted that after seeing news items, Mark C and Mark D, there was reference of only two persons, out of whom, one was stated to have died and other was stated to have admitted in the hospital in an injured condition. He went to Nahan along with Rakesh Sharma. They had come to know about the name of that person to be Inder Singh on that very day. He got suspicious about that person and made a telephonic call to Jagdish, who reached Nahan on the next day. On being identified by Jagdish, they called the Investigating Officer Krishan Kumar from Rajgarh, who reached the spot at about 10.00/10.30 A.M. He admitted that he identified the accused Rajesh on the basis of photograph shown to him by the police. 17. PW7, Jagdish, testified that on 24.12.2003, he was sitting in the vehicle No.HP-01-1482 along with Brij Lal. He was sitting on the rear seat and Brij Lal was on the front seat. At about 5.30 P.M., two persons came there and asked for a vehicle to Solan. They talked to Brij Lal. The fare was fixed at Rs.900/-. But, when Chita Lal came, the fare was fixed at Rs.950/- as they asked to go via Shimla. One of them was wearing grey sweater and black/dark coloured pants and the other one was wearing brown jacket and grey pants. Both of them were of 21-22 years old. He could identify them. He was sitting on the rear seat of the vehicle. One of them was wearing grey sweater and black/dark coloured pants and the other one was wearing brown jacket and grey pants. Both of them were of 21-22 years old. He could identify them. He was sitting on the rear seat of the vehicle. Brij Lal talked to them and thereafter Brij Lal went to call Chinta Lal and till then those persons remained there. He remained sitting in the vehicle along with them for about 10-12 minutes. They told that they wanted to go via Tutu from where two ladies and two children were to board the vehicle. The third person boarded the vehicle along with them a little ahead. His face was muffled. After some days, he came to know about the recovery of the dead body of Chinta Lal from Rajgarh. After 24.12.2003, the said vehicle did not return to Darlaghat. After some days, he received a telephonic call from Rakesh Sharma, owner of vehicle No. HP-01-1482. He told him that a vehicle had met with an accident at Paonta and one person was admitted in Hospital. He was called to identify him. He went to Nahan. He identified that person to be the same, who had hired taxi from Darlaghat. Brij Lal also identified him. The police visited the hospital later on and prepared the memo Ext.PW6/C. The police took him to Rajban where the vehicle No. HP-01-1482 was parked. The vehicle was identified by Rakesh Sharma vide memo, Ext.PW6/D. Thereafter, the police called him to identify a person in jail, who was apprehended by the police. He identified the person in the jail in the presence of Judicial Magistrate. He was the same person, who had hired the taxi at Darlaghat on that day. In cross-examination, he deposed that he did not have friendly terms with Chinta Lal or Brij Lal. They were familiar to him. They were sitting in the vehicle for about 1 ½ hours. They talked to Brij Lal for 2-3 minutes and thereafter they went towards bus stand saying that they would return after consulting the third person. After 5-7 minutes they came back. Brij Lal went to call Chinta Lal, who came after 5-10 minutes. He visited Nahan Hospital 5-6 days after the recovery of dead body of Chinta Lal. He had gone alone. He reached Nahan at 1/1½ P.M.. After 5-7 minutes they came back. Brij Lal went to call Chinta Lal, who came after 5-10 minutes. He visited Nahan Hospital 5-6 days after the recovery of dead body of Chinta Lal. He had gone alone. He reached Nahan at 1/1½ P.M.. The Investigating Officer met him near Shimla road Chowk at 3.30/4.00/5.00 P.M. 18. PW8, Krishan Dutt, deposed that on 6.5.2004 the police called him and Padam Singh. They were associated in the investigation. On that day, accused Rajesh Kumar was in the custody of police. They went to Chhichhria forest, situated on Nauhra Dhar road, by vehicle. In the middle of the road, at one place, the accused Rajesh Kumar got the vehicle stopped. Accused Rajesh Kumar revealed that at this place he along with his co-accused Inder Singh and Sanjay called Chinta Lal out of the vehicle on the excuse to pass urine and murdered him. Accused Rajesh also revealed that they put his body in the vehicle and placed his body on a bridge two kilometres before Didag. The police identification memo, Ext.PW8/A and Ext.PW8/B. 19. PW9, Manish Thakur, deposed that on 5.5.2004, he was associated with the police along with one Dinesh Thakur. The accused Rajesh Kumar was in the custody of the police. The accused told the police that he and co-accused Sanjay and Inder Singh hired a taxi from Darlaghat to Solan and thereafter, from Solan to Didag-Rajgarh road, the fare was fixed at Rs.750/-. A little behind from Didag, the vehicle was stopped on the pretext of passing urine and there Inder Singh strangulated the driver with an accelerator wire of the scooter. Accused Sanjay Kumar caught hold of him by his arms and he gave kick blows on his private parts. The deceased died on the spot. They took the vehicle towards Didag and kept the dead body below a bridge. He also disclosed that the registration number of the vehicle to be HP-01-1482, which was later on changed to HP-17-4443. He further disclosed that they took the vehicle towards Dehradun Vikasnagar road. On 2.1.2004 or 1.1.2004, when they were going to Harbertppur (UP) via Amboya, on the way, the vehicle met with an accident near a Peepal tree at Bangran. He sustained injuries and they left the vehicle there only. His statement to this effect was recorded by the police vide Ext.PW9/A. 20. On 2.1.2004 or 1.1.2004, when they were going to Harbertppur (UP) via Amboya, on the way, the vehicle met with an accident near a Peepal tree at Bangran. He sustained injuries and they left the vehicle there only. His statement to this effect was recorded by the police vide Ext.PW9/A. 20. PW10, Ram Pal, deposed that the priest of Shiv Temple was Rajvir alias Raju. On 2.1.2004, at about 5.30 A.M., Raju called him and told that a vehicle had met with an accident near a tree. He went there and found the vehicle no. HP-17-4443 in the accidental condition near the peepal tree. Thereafter, he informed the Police Post, Rajban on telephone and the police visited the spot. The police took into possession the aforesaid vehicle vide memo Ext.PW10/A. Thereafter, on 7.5.2004, the police again visited Bangran along with accused Rajesh Kumar. The accused Rajesh Kumar identified the place of the accident of the vehicle vide memo Ext.PW10/B. 21. PW11, ASI Ram Singh, deposed that he was posted as Incharge at Police Post, Rajban in the year 2004. On 10.1.2004, a Tata Sumo bearing registration No.HP-01-8406, on which a fake number plate bearing No.HR-07-8406 was affixed, which was coming from Kamrau towards Paonta met with an accident and fell down in a Dhank at Yona Temple near Kamrau in which one person, who was driving the vehicle, whose name was later on revealed as Sanjay, died on the spot. Another person, whose name was later on revealed as Inder Singh, sustained injuries and was admitted at the first instance at Civil Hospital, Paonta Sahib and later on he was referred to Zonal Hospital, Nahan. An FIR No.21/04 under Sections 279, 337, 304-A dated 10.1.2004 was registered at Police Station Paonta Sahib pertaining to the accident. The accidental vehicle was taken into possession vide memo Ext.PW11/A. The site plan, Ext.PW11/B was prepared. The search memo of the dead body Ext.PW11/C was prepared and the same was handed over to the relatives of the deceased vide memo Ext.PW11/D. The post mortem on the body of accused Sanjay Kumar was conducted and report, Ext.PW11/F was obtained. Thereafter, Tata Sumo No. HP-01-8406 was handed over to the Incharge, Police Post Saraswati Nagar, Police Station Jubbal, HC Mahesh Kumar vide memo Ext.PW11/G after the order was passed by the court on 14.1.2004. The mechanical examination of the vehicle was also got conducted. Thereafter, Tata Sumo No. HP-01-8406 was handed over to the Incharge, Police Post Saraswati Nagar, Police Station Jubbal, HC Mahesh Kumar vide memo Ext.PW11/G after the order was passed by the court on 14.1.2004. The mechanical examination of the vehicle was also got conducted. In cross-examination, he deposed that the name of the deceased Sanjay was revealed by accused Inder Singh on 11.1.2004. He received the information about the admission of the accused Inder Singh at Civil Hospital, Paonta Sahib from Police Station, Paonta on telephone by MHC Police Station, Paonta. During search of the dead body of Sanjay, a diary was found vide memo Ext.PW11/C. The diary was handed over to ASI K.K. Sharma, Police Station Rajgarh on 26.1.2004. No memo was prepared regarding this. This fact was recorded in the zimini order dated 26.1.2004 of FIR No.21/2004. 22. PW12, HC Keshwa Nand, testified that on 2.1.2004, he was on patrolling duty at Bangran. A maruti van on which number plate HP-17-4443 was affixed was lying in an accidental condition near a peepal tree, near Shiv temple. No person was on the spot and the vehicle was lying there unclaimed. The vehicle was taken into possession by him and a rapat No.14 dated 2.1.2004 was entered at Police Post Rajban. After noting down chassis and engine number of the vehicle, all the police stations of District Sirmaur were informed by a wireless message. On 28.1.2004, ASI K.K. Sharma visited the Police Post, Rajban along with owner of the aforesaid vehicle, Rakesh Kumar. He identified the same to be owned by him. The aforesaid vehicle was handed over to ASI K.K. Sharma in terms of the orders of the court. 23. PW13, Dr. M.L. Gupta, deposed that accused Inder Singh was admitted in the Zonal Hospital, Nahan on 10.1.2004 at 3.40 P.M. after having been referred from Civil Hospital Paonta Sahib. He was discharged from Zonal Hospital Nahan on 14.1.2004 at 10.05 P.M. for being referred to IGMC Shimla. He issued case summary Ext.PW13/A. 24. PW14, Dy. Superintendent of Police, Gurmeet Singh, deposed that on 13.1.2004, he was present in the office of SDM, Rajgarh in connection with arrangement of 26.1.2004 parade. He was discharged from Zonal Hospital Nahan on 14.1.2004 at 10.05 P.M. for being referred to IGMC Shimla. He issued case summary Ext.PW13/A. 24. PW14, Dy. Superintendent of Police, Gurmeet Singh, deposed that on 13.1.2004, he was present in the office of SDM, Rajgarh in connection with arrangement of 26.1.2004 parade. When he was busy in the meeting, at about 2.00 P.M he received a call on his mobile from one Brij Lal, brother of the deceased to the effect that he had come to Zonal Hospital, Nahan after reading a news item in Divya Himachal newspaper in order to see the injured person, who was admitted in the Zonal Hospital and that on seeing him, he was sure that the injured was on of those persons who had hired the taxi from Darlaghat. He talked to Superintendent of Police, Sirmaur at Nahan and thereafter, deputed the Investigating Officer to do the needful. 25. PW15, Harish Kumar, testified that he had taken the photographs of Maruti Van No. HP-17-4443 vide Ext.PW15/A and Ext. PW15/B. 26. PW16, Layak Ram, was working as Manager, Hatkoti Mandir. As per register, on 23.8.2003, one Sanjay Sharma, son of Bhajan Lal, resident of Azadpur, Delhi stayed in Room No.105 and to this effect entry at Sr. No.34 was made. As per the record, two persons including Sanjay Sharma had stayed in the said room. Ext.PW16/A was copy of abstract of original register pertaining to entry No.34. 27. PW17, Rajinder Sharma, deposed that he had been working as Manager in Singh Guest House at Rohru. As per the register, one Sanjay Sharma, son of Bhajan Lal, house No.690/17, Kewal Park, Azadpjur Mandi, Delhi had stayed in room No.14 along with another person. The entry at Sr. No. 784 was made to this effect. The abstract of the register was Ext.PW17/A. In cross-examination, he admitted that the entries in the summoned register started from 12.9.2003 to 17.10.2004. He admitted that in the register, entries on this page as well as entries on other page, year 2003 were written as “03” only or “04” only, but this entry at Sr. No.784 shows “004”, which was made to appear by adding “20” before “04” and figure “20” was in different ink. He could not explain why at Sr. He admitted that in the register, entries on this page as well as entries on other page, year 2003 were written as “03” only or “04” only, but this entry at Sr. No.784 shows “004”, which was made to appear by adding “20” before “04” and figure “20” was in different ink. He could not explain why at Sr. No.784 “2004” had been mentioned whereas such entries qua said year as well as previous year, i.e. 2003 had been denoted by writing “04” and “03”. 28. PW18, Parvesh Sharma, deposed that he was working as part time worker in Civil Supply Federation, Gas Agency, Rohru. In the month of July 2003, when he was waiting for transport bus for Shimla from Rohru, one vehicle HR-18-8130 came, in which his friend was sitting. He took lift in that vehicle. Sanjay Kumar was also travelling in the vehicle. Since they travelled together upto Shimla, he got acquaintance with him. On 23.8.2003, Sanjay had come to Hatkoti to pay obeisance to Deity along with his friend Inder Singh. He made arrangement for their stay in the Sarai of Temple. One Rajesh, friend of Sanjay had also come in his contact because he was introduced by Sanjay. One day Rajesh had come to his office at Rohru in Indica vehicle No.DL-1Y-9910 and enquired about Sanjay and Inder Singh. He told that they were at Hatkoti. On 4.1.2004, Rajesh met him at Rohru and on 5.1.2004 Sanjay met him also there. They used to visit Rohru in order to provide transport facilities to the apple contractors in their vehicle No.HR-18-8130. In cross-examination, he deposed that the Investigating Officer, Krishan Kumar had come to his house at Hatkoti in order to record his statement. 29. PW19, Constable Pradeep Kumar deposed that on 4.2.2004, Rakesh Sharma produced duplicate documents of vehicle No. HP-01-1482 and the same were taken into possession vide memo Ext.PW19/A. 30. PW20, Tajinder Singh, deposed that he remained posted as Patwari in Patwar Circle, Didag in the year 2004. On the directions of Tehsildar, he visited the spot, i.e. Chhichhria Sadak and prepared the spot map, Ext.PW20/A. 31. PW21, Dr. Rita Nayyar, deposed that on the application of police, Ext.PW21/A, she conducted post mortem on the body of Chinta Lal on 30.12.2003 at 1.00 P.M.. On the directions of Tehsildar, he visited the spot, i.e. Chhichhria Sadak and prepared the spot map, Ext.PW20/A. 31. PW21, Dr. Rita Nayyar, deposed that on the application of police, Ext.PW21/A, she conducted post mortem on the body of Chinta Lal on 30.12.2003 at 1.00 P.M.. She found the following injuries on the body of the deceased:- 1) Lacerated wound left nostril 2 cm x 1.5 cm in size with irregular margin. 2) Lacerated wound proximal phalanx index finger. Medial side 3 cm x 2.5 cm size. Exposing bone irregular margin right hand. 3) There was ligature mark around the neck extending from angle of mandible right side to angle of mandible left side at the level of thyroid cartilage, as shown in diagram. The mark was not visible on posterior of neck. The underline skin was abraded. There were multiple abrasions of various sizes ranging from 0.5 cm x 1cm to 5 cm into 0.3 cm in size reddish brown in colour with normal skin between. On dissection there were ecchymosis of underline tissues present more at near the level of thyroid cartilage was fractured. Hyoid bone was not fractured. Neck was not lengthened (elongated). 4) Abrasions upper back right side 2 cm x 3 cm size and 3 cm x 2 cm in size reddish brown in colour at the level of angle of scapula. 5) There was contusion 3 cm x 4 cm size over the scrotum more on the left reddish in colour with slight palpable swelling on testis. More on the lower pole with bleeding present. Clotted blood on the tip of penis present. On squeezing the penis fresh blood was coming out. No evidence of semen was present. There was no fecal matter present at external anal sphincter. 6) There were multiple abrasions on medial aspect of thigh. Both sides reddish brown in colour of various sizes. Cranium and spinal cord were normal. In thorax slight conjection was present. The larynx and trachea, right lung and left lung were conjested but normal. According to her opinion, the deceased died as a result of neurogenic shock and asphyxia (cause severe hit over external genitalia and injury over thyroid cartilage). She issued post-mortem report, Ext.PW21/B. 32. PW22, Dr. Lalit Gupta, deposed that on 28.4.2004, on the application of police, Ext.PW22/A, he examined accused Rajesh Kumar. He issued MLC, Ext.PW22/B. 33. According to her opinion, the deceased died as a result of neurogenic shock and asphyxia (cause severe hit over external genitalia and injury over thyroid cartilage). She issued post-mortem report, Ext.PW21/B. 32. PW22, Dr. Lalit Gupta, deposed that on 28.4.2004, on the application of police, Ext.PW22/A, he examined accused Rajesh Kumar. He issued MLC, Ext.PW22/B. 33. PW23, Anokhi Ram, deposed that on 19.7.2004, the wire, Ext.P1, was shown to the Medical Officer and opinion was obtained from him. He also inspected the wire, which was scooter gear/clutch wire. He gave certificate, Ext.PW23/A to this effect. 34. PW24, Roshan Lal, proved certificate, Ext.PW24/A issued by the Secretary, State Transport Authority. 35. PW25, HHC Babu Ram, deposed that on 26.12.2003, at about 1.40 P.M., Brij Lal lodged a report regarding missing of Chinta Lal since 24.12.2003. The information was reduced into writing vide rapat No.12 dated 26.12.2003 by him vide Ext.PW25/A. 36. PW26, Subhash Chand, deposed that on 28.1.2004, he mechanically examined Maruti Van No.HP-17-4443 parked in Police Post, Rajban. The number HP-01-1482 was inscribed on window pans of the vehicle. He also noted down the engine and chassis number of the van on trace papers vide Ext.PW26/A and Ext.PW26B. He issued inspection report Ext.PW26/C to this effect. He also mechanically examined Tata Sumo No. HP-01-8406, which met with an accident. He also issued report to this effect, vide Ext.PW26/D. 37. PW27, Dr. V.K. Mishra, deposed that on 6.5.2004, at 10.00 A.M., the accused Rajesh Kumar was examined by him along with Dr. H.S. Shekhon. He issued expert opinion report, Ext.PW27/B. The accused Rajesh Kumar was identified by the identification mark mentioned in the MLC report, Ext.PW22/B. 38. PW28, H.S. Verma, deposed that he remained posted as Judicial Magistrate, 1st Class, Nahan, w.e.f. 4.3.2004 to 1.5.2006. On 29.4.2004, he received an application for test identification parade of the accused Rajesh Kumar from the court of Sessions Judge, Sirmaur District at Nahan. He gave notice to the Superintendent, Model Central Jail, Nahan, requiring Rajesh Kumar to produce in a muffled condition on 1.5.2004 at 10.00 A.M. The accused was produced with muffled face before him on 1.5.2004. He examined him vide separate statement Ext.PW28/A and he showed his willingness to join the test identification parade. The accused stated that the Investigating Officer had taken two photographs during his custody. He examined him vide separate statement Ext.PW28/A and he showed his willingness to join the test identification parade. The accused stated that the Investigating Officer had taken two photographs during his custody. Therefore, he allowed prayer of the police and gave directions to the Superintendent, Model Central Jail, Nahan, to make arrangement for test identification parade, which was to be held on 3.5.2004. Pursuant to his order dated 1.5.2004, Ext.PW28/C, the Superintendent, Model Central Jail, Nahan, made necessary arrangement by providing nine other persons normally of the same height, physique and complexion as that of accused Rajesh Kumar. It was ensured by him that other nine persons were wearing the same clothes as that of the accused. They were dressed in prisoners’ uniform. Thereafter, he conducted the test identification parade in accordance with the procedure laid down in this regard as per the Rules and orders of this Court. After mixing the accused with nine other persons and made him to sit at different places at the time of first, second and third round, he was properly identified by Brij Lal and Jagdish to be the same person, who had come to them at Darlagaht for hiring taxi on 24.12.2003. His detailed proceedings qua test identification parade were Ext.PW28/D and Ext.PW28/E. The list of non-suspect persons including the accused was Ext.PW28/G. After test identification parade, the entire record was sent to the Additional Chief Judicial Magistrate, Rajgarh under sealed cover vide order dated 3.5.2004, Ext.PW28/G. In cross-examination, he deposed that when Rajesh Kumar told him that his photographs were taken by the police, he did not enquire from him where his photographs were taken. He did not ask ASI Krishan Kumar for having taken photographs of the accused Rajesh Kumar. He admitted that witness Jagdish was having his face muffled when he appeared before him for identification of the accused. He volunteered that it was partially muffled upto nose level. 39. PW29, HC Jaswant Singh, deposed that on 2.1.2004, on receipt of statement, Ext.PW6/B, he recorded FIR, Ext.PW29/A. Prior to registration of the FIR, ASI K.K. Sharma deposited with him ten sealed parcels sealed with seal impression “BS” along with sample seal, which were entered in Malkhana register No19 dated 20.12.2003 at Sr. No.305. 40. PW30, Constable Jamal Khan, proved Rapat No.14 dated 2.1.2004. 41. No.305. 40. PW30, Constable Jamal Khan, proved Rapat No.14 dated 2.1.2004. 41. PW31, HC Ashok Kumar, deposed that on 29.12.2003, at about 10.15 A.M., a telephonic message was received from one Parsani Devi about a dead body lying at place Chhichhria under a bridge. The information was entered at Sr. No.12 dated 29.12.2003 by him vide Ext.PW31/A. The information was also given to the SDPO, Rajgarh. ASI Krishan Kumar along with other police officials proceeded to the spot. In cross-examination, he admitted that entries at Sr. No.96 to 100 had cuttings/over-writings. 42. PW32, SI Hari Ram, deposed that he remained posted as SHO, Police Station Jubbal from April 2004 till October 2005. FIR No.4/04 under Section 379 of the Indian Penal Code was registered on 10.1.2004 regarding theft of Tata Sumo No. HP-01-8406 vide Ext.PW32/A. 43. PW33, SI Anoop Singh, deposed that on completion of the case, ASI Krishan Kumar handed over to him case for preparation of challan. On receipt of FSL report, Ext.PW33/A, he prepared the challan and presented before the court. 44. PW34, HC Bashist Kumar, deposed that in FIR No.324, accused had been named as Rajesh Kumar and Naresh Kumar, who were declared as proclaimed offender. In FIR No.383, accused had been named as Devinder, Ajay, Rajesh and Naresh. In FIR No.73, accused had been named as Rajesh. In FIR No.153, the accused was named as Rajesh. Copy of the summary detail of the said FIRs was Ext.PW34/A. 45. PW35, ASI Kailash, deposed that statement of Ashok Kumar Gupta recorded by SI Rajesh Kumar was received in the Police Station, on the basis of which FIR No.479 dated 25.12.2002 under Section 457/380/411/34 IPC, was registered at Police Station, Alipur. 46. PW36, ASI Krishan Kumar, deposed that on 29.12.2003, at about 10.15 A.M., police received an information that a dead body of person was lying at Chhichhria bridge. He along with Constable Vidya Nand visited the spot. He associated Pradhan Parsani Devi, Up Pradhan Pratap Singh, ward member Om Parkash in the police investigation. He recovered a body of person about 25 years old. He got clicked photographs of the deceased vide Ext.PW36/B-1 to Ext.PW36/B-12 and took into possession unidentified body vide memo Ext. PW2/A. He brought dead body to the Hospital at Rajgarh for post-mortem. He also got published a notice in daily newspaper for identification of dead body. He recovered a body of person about 25 years old. He got clicked photographs of the deceased vide Ext.PW36/B-1 to Ext.PW36/B-12 and took into possession unidentified body vide memo Ext. PW2/A. He brought dead body to the Hospital at Rajgarh for post-mortem. He also got published a notice in daily newspaper for identification of dead body. On 30.12.2003, post mortem on body of the deceased was conducted. In the mean time, Brij Lal reached at the hospital along with other persons of the village. He identified the dead body to be that of his brother Chinta Lal alias Chaman Lal. After identification of dead body the same was handed over to Brij Lal vide seizure memo Ext.PW6/A. He recorded statement of Brij Lal under Section 154 Cr.P.C. at Darlaghat vide Ext.PW6/B. He sent the statement for registration of the case through Constable Pradeep Kumar to Police Station Rajgarh. He prepared the site plan, Ext.PW36/C on 29.12.2003 regarding recovery of dead body in village Chhichhria. On 1.1.2004, at the time of identification of Jagdish, he prepared the site plan, Ext.PW36/C at Darlaghat. On 13.1.2004, he received a message from the Deputy Superintendent of Police, Rajgarh, that a person was admitted in Zonal Hospital for treatment of fracture, which he had received in Paonta Sahib area in a motor vehicle accident and that Brij Lal had identified him to be the same person, who had hired the taxi from Darlaghat. He went to Nahan on 14.1.2004, where Brij Lal, Jagdish, Rakesh and Devi Roop met him in Gunnughat. He took them to the hospital and they identified the injured through Jagdish Chand and memo to this effect was prepared vide Ext.PW6/C. The injured was referred to IGMC, Shimla for treatment. On 21.4.2004, the accused was taken into custody and his statement, Ext.PW3/B, under Section 27 of the Evidence Act, was recorded to the effect that he could identify the place where dead body of Chinta Lal was kept. The accused Inder Singh also got recovered a flexible wire Ext.P1 vide recovery memo Ext.PW3/C. He took into possession the wire and wrapped the same in a parcel and affixed seal impression H and handed over the seal to Asha Prakash. He prepared memo Ext.PW3/D regarding the place of identification of Chhichhria bridge, where the dead body was kept. He handed over the case property to MHC, Police Station Rajgarh. He prepared memo Ext.PW3/D regarding the place of identification of Chhichhria bridge, where the dead body was kept. He handed over the case property to MHC, Police Station Rajgarh. The accused Rajesh Kumar was arrested on 26.4.2004 and was produced before the Judicial Magistrate Sonipat. The accused was muffled before the Magistrate and on the next day, he was produced before the Judicial Magistrate, 1st Class, Rajgarh in a muffled condition and was sent to judicial custody by the Magistrate. On 3.5.2004, identification of the accused Rajesh Kumar was conducted in the central jail Nahan by the Magistrate. He took custody of the accused on 5.5.2004. During police custody, accused Rajesh Kumar made disclosure statement that he could identify the place where he had stopped the vehicle and thereafter killed the deceased, vide memo Ext.PW9/A. The accused led the police party and the witnesses to the place where they had kept the dead body and also pointed out the place where the vehicle was stopped. Earlier during investigation on 26.1.2004, he prepared a site plan of place where Maruti Van No. HP-17-4447 was left after the accident vide Ext.PW36/I. The vehicle was got mechanically examined from local Mechanic Subhash. Number plates of the vehicle were taken into possession vide memo Ext.PW6/D. He obtained the abstract of Yatri register from the Manager of Singh Guest House at Rohru vide Ext.PW17/A. The vehicle No. HP-17-4447 was taken into possession as unclaimed. He also obtained post mortem record of the deceased Sanjay Kumar from ASI Ram Singh, ASI Incharge Police Post, Rajban, vice Ext.PW11/F. He also obtained abstract of register of barrier at Giripul Rajgarh, Ext.PW4/A. The report of viscera was obtained and attached with the challan. In cross-examination, he admitted that he had not recorded statement of Brij Lal when he came to Rajgarh and identified dead body of Chinta Lal. He had not recorded the statement of Brij Lal regarding hiring of taxi by three persons nor Brij Lal opted to make any statement regarding the same. He reached Darlaghat on 1.1.2004 and recorded statement of Brij Lal, Ext.PW6/B. Brij Lal gave description of all three persons, who hired the taxi as per the clothes worn by them. He did not recover the clothes, which were worn by the persons as per Ext. PW6/B. He could not give any explanation for non-recovery of clothes. He reached Darlaghat on 1.1.2004 and recorded statement of Brij Lal, Ext.PW6/B. Brij Lal gave description of all three persons, who hired the taxi as per the clothes worn by them. He did not recover the clothes, which were worn by the persons as per Ext. PW6/B. He could not give any explanation for non-recovery of clothes. He denied that he had taken a diary which was recovered by Ram Singh from the body of Sanjay or that there were addresses and telephone numbers, on the basis of which, he was to trace out such persons, whose addresses and telephones numbers were written in the diary. On 14.1.2004, he interrogated Inder Singh in the hospital and obtained his name and address. Memo was prepared to this effect. He admitted that when he took steps to know the antecedents of accused Inder Singh, he came to know that he was involved in a theft case in Alipur Police Station, Delhi, in which accused Rajesh Kumar was also involved. 46 The prosecution case is entirely based on circumstantial evidence. There is no eye witness. The prosecution had relied upon following five circumstances to establish the charge framed against the accused:- I. That the accused persons had hired the taxi bearing registration No.HP-01-1482 being driven by Chinta Lal on 24.12.2003 at about 5.00 P.M. to go to Solan and that Chinta Lal along with accused proceeded from Darlaghat in the said taxi but he did not thereafter return. II. That the said vehicle of Chinta Lal was seen at Rajgarh in the night intervening 24 and 25.12.2003 and on 29.12.2003 the dead body of the deceased was found lying underneath the bridge at Chhichhria after Rajgarh. III. That the accused Inder Singh while in police custody made a disclosure statement regarding the place where the deceased was killed and regarding the place where the dead body was concealed as well as regarding the place where weapon of offence has been concealed and in pursuance of such disclosure statement the accused Inder Singh got recovered the wire, Ext.P1, the weapon of offence as well as he also identified the place where the dead body was concealed and also the place where the deceased was killed. IV. IV. That the accused Rajesh Kumar while in police custody gave a disclosure statement regarding the place where the deceased was killed and the place where the dead body was concealed as well as also regarding the place where the vehicle being driven by the deceased Chinta Lal was abandoned by them after the accident and in pursuance of such disclosure statement, the accused Rajesh Kumar identified the place where the vehicle met with an accident as well as gave identification of the place where the dead body of Chinta Lal was concealed. V. That the vehicle being driven by Chinta Lal was found in an abandoned condition after the accident near Rajban whose number plates were found to be changed. According to the prosecution, all the circumstances, stated hereinabove, were duly established on record beyond reasonable doubt. 47. Now, the Court will advert to the evidence to find out whether circumstances No. 1 and 2 stood proved against the accused. 48. PW6, Brij Lal, stated that on 24.12.2003, he along with PW7 Jagdish was sitting in a vehicle bearing registration No.HP-01-1482. At about 5.00 P.M., two persons came and told them they wanted to hire a vehicle to Solan via Shimla. They fixed the fair at Rs.900/-. PW6, Brij Lal called his brother Chinta Lal, who fixed the fare at Rs.950/-. According to him, one of the accused was wearing grey shirt and black/dark coloured pants. His age was between 20 to 22 years. He was having white complexion. His face was round and his height was about 5 ½ feet. He used to speak Hindi. He was clean shaven having small moustaches. The other accused was wearing grey coloured jacket. His age was between 22 to 23 years. His height was 5½ feet and his face was round. He also used to speak Hindi. They were looking like “Bhaiya”. PW6 Brij Lal further testified that the third accused also boarded the van at a short distance. His face was muffled. His brother Chinta Lal did not return back to Darlaghat till 25.12.2003. On 26.12.2003, he went to the Police Station and reported the matter vide rapat No.12 dated 26.12.2003, Ext.PW25/A. 49. According to rapat No.12, Ext.PW25/A, PW6 Brij Lal reported that his brother, Chinta Lal, used to ply Taxi No. HP-02-1482. He had taken three passengers at 6.00 P.M. towards Solan. On 26.12.2003, he went to the Police Station and reported the matter vide rapat No.12 dated 26.12.2003, Ext.PW25/A. 49. According to rapat No.12, Ext.PW25/A, PW6 Brij Lal reported that his brother, Chinta Lal, used to ply Taxi No. HP-02-1482. He had taken three passengers at 6.00 P.M. towards Solan. Neither he returned back nor he telephoned him. He searched him in the relations and also nearby places. He could not trace out him. He requested his brother be traced out. He also gave description of his brother. This is the first information, which PW6 Birj Lal, had supplied to the police on 26.12.2003. He had not given any description of three persons in Ext.PW25/A. He had also not given the description of clothes worn by these persons at the time of hiring of Taxi at Darlaghat. He had also not disclosed that he was sitting with PW7 Jagdish Chand in the vehicle and these persons had come and that he had fixed the fare and called his brother Chinta Lal. 50. According to him, on 30.12.2003, he read a news item regarding recovery of a dead body at Rajgarh. He went to Rajgarh. He identified body of his brother. Thereafter, the police got conducted most-mortem on the body of deceased and handed over the same him vide memo, Ext.PW6/A. His statement was recorded under Section 154 Cr.P.C. Ext.PW6/B by the police. It is intriguing to note that as per statement of PW36, ASI Krishan Kumar, statement of PW6 Brij Lal was recorded under Section 154 Cr.P.C. vide Ext. PW6/B at Darlaghat. The statement ought to have been registered at Rajgarh, where the incident is alleged to have taken place. It is only in the statement recorded under Section 154 Cr.P.C., Ext.PW6/B, wherein PW6 Brij Lal had given, for the first time, description of two persons and the clothes worn by them. It has also come in the statement of PW36, ASI Krishan Kumar, that the clothes were never recovered by the police, which according to PW6 Brij Lal were worn by the accused at the time when they hired Taxi at Darlaghat on 24.12.2003. 51. It has also come in the statement of PW6 Brij Lal that he had conversation with the two accused for 2-3 minutes at Darlaghat. Thereafter, he went to call his brother, Chinta Lal. 51. It has also come in the statement of PW6 Brij Lal that he had conversation with the two accused for 2-3 minutes at Darlaghat. Thereafter, he went to call his brother, Chinta Lal. It is difficult to believe that a person, who talked to persons for 2-3 minutes for the first time, would have remembered all the details of persons, who alleged to have hired the taxi at Darlaghat. It is not explained by the prosecution why PW6 Brij Lal and PW7 Jagdish were sitting in a Taxi No. HP-01-1482. Taxi No.HP-01-1482 was owned by Rakesh Sharma. He was not examined by the prosecution. 52. According to PW7 Jagdish, on 24.12.2003, he along with PW6 Brij Lal was sitting in the vehicle at 5.30 P.M.. According to him, two persons had come and had conversation with PW6 Brij Lal about hiring of Taxi. He was sitting on the rear seat. Brij Lal went to call Chinta Lal. He remained sitting in the vehicle along with them for about 10-12 minutes. He categorically admitted that he did not have friendly relations either with PW6 Brij Lal or his brother Chinta Lal. According to him, they were familiar to him. He was sitting in the Taxi for about 1½ hours. It is not understandable when PW7 Jagdish was not on friendly terms with PW6 Brij Lal and his brother Chinta Lal, why he was sitting in the vehicle No. HP-01-1482, that too for about 1 ½ hours. He was confronted with his statement, Mark DB, wherein it was not stated by him that two persons remained sitting with him in the Taxi for about 10-15 minutes. 53. PW6 Brij Lal and PW7 Jagdish, specifically deposed that the accused were three in number, who had told that they would go to Solan via Shimla because they had to take two ladies and two children at Totu and that is why fare was fixed at Rs.950/- instead of Rs.900/- by deceased Chinta Lal. Sitting capacity of a van is 5 persons. If three persons were already occupying the van, excluding driver, as per the statements of PW6 Brij Lal and PW7 Jagdish, how two ladies and two children could also be accommodated in a van. 54. Sitting capacity of a van is 5 persons. If three persons were already occupying the van, excluding driver, as per the statements of PW6 Brij Lal and PW7 Jagdish, how two ladies and two children could also be accommodated in a van. 54. According to the prosecution, the vehicle No. HP-01-1482 driven by Chinta Lal was seen at Rajgarh in the night intervening 24/25.12.2003 and on 29.12.2003 the dead body of the deceased was found lying underneath the bridge at Chhichhria after Rajgarh. 55. According to PW4 Constable Rajinder Kumar, on 24/25.12.2003, he was deputed at Giripul barrier. In the intervening night of 24/25.12.2003, vehicle No. HP-01-1482, which had come from Darlaghat, crossed the barrier. Three persons excluding driver were sitting in the vehicle. He produced copy of abstract of the register, Ext.PW4/A. In the abstract of register, Ext.PW4/A, name of driver was shown as Chaman Lal. He admitted that there was overwriting in the last three entries of the page. It is apparent from abstract of register, Ext.PW4/A that initially the entries were with regard to vehicle No. HP-64-1071 and HP-63-0637. However, later on in the register, entry of vehicle No. HP-01-1482 has been shown at Sr. No.1. Sr. Nos. 1 and 2 were made Sr. No. 2 and 3. There was also overwriting towards right side on Annexure PW4/A. It casts doubt whether the vehicle No. HP-01-1482 had ever crossed Giripul Barrier or not. 56. As per statements of PW6 Brij Lal and PW7 Jagdish, the vehicle was hired upto Solan. According to PW5, Manjeet Singh, he was on patrolling duty at Bus Stand, Rajgarh in the intervening night of 24/25.12.2003. At about 1.00/1.30 A.M., a white coloured vehicle came from Giripul side. He stopped the vehicle and asked the driver where he was going. He replied that they were coming from Darlaghat and were going one curve ahead. According to him, two persons were sitting on the back seat and one was sitting on front seat with the driver. He asked the driver to produce his driving licence. The driving licence was produced by him. He admitted that the police used to maintain the record of checking, but he had not brought the same at the time of his examination-in-chief. He asked the driver to produce his driving licence. The driving licence was produced by him. He admitted that the police used to maintain the record of checking, but he had not brought the same at the time of his examination-in-chief. It is not understandable how PW5 Manjeet Singh could remember that three persons were found sitting in a particular vehicle while he was on patrolling duty at Bus Stand, Rajgarh in the intervening night of 24/25.12.2003 at 1.00/1.30 A.M. when is statement was recorded in the court on 18.6.2005. 57. Now, the court will advert to the evidence, the manner in which the dead body of the deceased was found lying below the bridge at Chhichhria. 58. According to PW1, Arun Kumar, on 29.12.2003, at about 9.00 A.M., when he had gone to bridge to ease out, he saw a human body. He got frightened and informed Pradhan, PW2 Parsani Devi, who was waiting for a bus. In cross-examination, he deposed that the bridge was on the main road side. If the dead body was lying there, it would have been noticed by many persons, who happened to use the road. PW1 Arun Kumar informed PW2 Parsani Devi, who further telephonically informed the Police. The police visited the spot and prepared the map. The police took into possession dead body. PW2 Parsani Devi, in her cross-examination, stated that the dead body was lying at a distance of 20-25 steps from gate of her house. If that was so, she would have been the first person to notice the dead body not PW1 Arun Kumar. 59. According to PW6, Brij Lal, when he came back from Rajgarh to his house, after about 8-10 days, he went to Darlaghat, where he read a news item in a newspaper about theft of a vehicle from Jubbal, which met with an accident near Sataun, which was occupied by three persons. It was also mentioned in the news-item that one person died in the accident. Leg of other person got fractured and one of them fled away. He went to SHO, Police Station, Darlaghat along with newspaper. The SHO, Police Station, Darlaghat made a telephonic call to Deputy Superintendent of Police, Rajgarh. After making the telephonic call, PW6 Brij Lal came to know that the person, whose leg was fractured, was admitted at Nahan Hospital. He alone went to Nahan Hospital. He went to SHO, Police Station, Darlaghat along with newspaper. The SHO, Police Station, Darlaghat made a telephonic call to Deputy Superintendent of Police, Rajgarh. After making the telephonic call, PW6 Brij Lal came to know that the person, whose leg was fractured, was admitted at Nahan Hospital. He alone went to Nahan Hospital. He got suspicious on seeing the injured person because he was the same person, who had hired taxi at Darlaghat. He made a telephonic call to Jagdish and called him. Rakesh Sharma, owner of vehicle No. HP-01-1482 also came with Jagdish. Jagdish also identified the injured to be the same person, who had hired taxi from Darlaghat. Thereafter, they sent a message to Police Station, Rajgarh and the police came. He and PW7 Jagdish identified the person in the presence of police vide memo Ext.PW6/C. Thereafter, they came back to Darlaghat. PW6 Brij Lal stated that he reached Nahan and made a telephonic call to PW7 Jagdish, who reached Nahan on the next day. 60. PW7 Jagdish deposed that he came to know about the recovery of the dead body of Chinta Lal from Rakesh Sharma. After some days, he received a phone call from Rakesh Sharma, owner of vehicle No. HP-01-1482, who told him that a vehicle had met with an accident at Paonta and one person who got injured, was admitted in the Hospital and he was called to identify him. In these circumstances, he went to Nahan. According to PW6 Brij Lal, after 5-6 days, Rakesh Sharma telephonically informed him at his residence that there was a vehicle at Sataun, which was to be identified. The vehicle was parked at the police post. When he reached there, he noticed that the number plate of the vehicle was changed and another number plate bearing No. HP-17-4443 was affixed in the van. However, on close look of the vehicle, he found that the number of the vehicle H.P.-01-1482 was faintly written on all the glasses of the vehicle. The vehicle was identified by Rakesh Sharma. According to PW7 Jagdish, PW6 Brij Lal had come to Nahan before him. 61. According to PW6, Brij Lal, he had taken the newspaper to SHO, Police Station Darlaghat, who had made phone call to Deputy Superintendent of Police, Rajgarh. Now, what PW14, Dy. The vehicle was identified by Rakesh Sharma. According to PW7 Jagdish, PW6 Brij Lal had come to Nahan before him. 61. According to PW6, Brij Lal, he had taken the newspaper to SHO, Police Station Darlaghat, who had made phone call to Deputy Superintendent of Police, Rajgarh. Now, what PW14, Dy. Superintendent of Police, Gurmeet Singh, deposed is that on 13.1.2004, he was present in the office of SDM, Rajgarh in connection with arrangement of 26.1.2004 parade. When he was busy in the meeting at about 2.00 P.M he received a call on his mobile from one Brij Lal, brother of the deceased to the effect that he had come to Zonal Hospital, Nahan after reading a news item in Divya Himachal newspaper in order to see the injured person, who was admitted in the Zonal Hospital and on seeing him, he was sure that the injured was one of those persons who had hired the taxi from Darlaghat. There is a major contradiction in the statements of PW6 Brij Lal and PW14 Deputy Superintendent of Police, Gurmeet Singh. As noticed above, PW6 Brij Lal deposed that SHO, Police Station Darlaghat had made a telephonic call to PW14 Deputy Superintendent of Police, Gurmeet Singh, whereas according to PW14 Deputy Superintendent of Police, Gurmeet Singh, PW6 Brij Lal had himself called him from Zonal Hospital Nahan after reading the newspaper in the Divya Himachal newspaper. The vehicle, which was allegedly hired by the accused, was bearing registration No. HP-01-1482. According to the prosecution case, it met with an accident at Bangran. It was got identified by the owner and the custody of the vehicle was handed over to him. The other vehicle involved in the accident was Tata Sumo No. HP-01-8406, on which registration No. HR-07-8406 was affixed. This vehicle also met with an accident near Yona Temple near Kamrau. According to statement of PW11, ASI Ram Singh, Sanjay Kumar, who was driving the vehicle, died on the spot. Another person, whose name was later on revealed as Inder Singh, sustained injuries and was admitted at the first instance at Civil Hospital, Paonta Sahib and later on, he was referred to Zonal Hospital, Nahan. There was no reference of three persons in the statement of PW11, ASI Ram Singh. 62. An FIR No.21/04 was registered at Police Station Paonta Sahib pertaining to the accident under Sections 279, 337, 304-A dated 10.1.2004. There was no reference of three persons in the statement of PW11, ASI Ram Singh. 62. An FIR No.21/04 was registered at Police Station Paonta Sahib pertaining to the accident under Sections 279, 337, 304-A dated 10.1.2004. He had taken into possession accidental vehicle vide memo Ext.PW11/A. PW17, Rajinder Sharma, deposed that as per register, one Sanjay Sharma, son of Sh. Bhajan Lal, house No.690/17, Kewal Park, Azadpjur Mandi, Delhi had stayed in room No.14 along with another person and to this effect entry at Sr. No. 784 was made. He proved abstract of the register, Ext.PW17/A. According to him, they had checked out from the hotel on 8.1.2004 at 9.00 A.M. He categorically admitted that the entries in the summoned register started from 12.9.2003 to 17.10.2004. He also admitted that in the register, entries on the page as well as entries on other page, year 2003 was written as “03” only or “04” only, but the entry at Sr. No.784 showed “2004”, which was made to appear by adding “20” before “04” and the figure “20” was in different ink. He could not explain why at Sr. No.784 “2004” had been mentioned whereas such entries qua said year as well as previous year, i.e. 2003 had been denoted by writing “04” and “03”. According to PW18, Parvesh Sharma, on 23.8.2003, Sanjay had come to Hatkoti to pay obeisance to Deity along with his friend Inder Singh. He made arrangement for their stay in the Sarai of Temple. One Rajesh, friend of Sanjay had also come in his contact because he was introduced by Sanjay. According to PW18 Parvesh Sharma, Sanjay Kumar and Inder Singh were at Hatkoti. On 4.1.2004, Rajesh had met him at Rohru and on 5.1.2004 Sanjay met him also there. He deposed in cross-examination that PW36 ASI, Krishan Kumar, had come to his house at Hatkoti in order to record his statement. Statement of PW18 Parvesh Sharma has been recorded only to show that the accused were seen at Rohroo. According to him, they used to visit Rohru in order to provide transport facilities to the apple contractors in their vehicle No. HR-18-8130. When they had their own vehicle, why they would steal Tata Sumo, which met with an accident on 10.1.2004. Statement of PW18 Parvesh Sharma has been recorded only to show that the accused were seen at Rohroo. According to him, they used to visit Rohru in order to provide transport facilities to the apple contractors in their vehicle No. HR-18-8130. When they had their own vehicle, why they would steal Tata Sumo, which met with an accident on 10.1.2004. A person, who has committed such a heinous crime would have the tendency to flee from the spot and would not be seen in the same area or proximity of the same area. PW6 Brij Lal had come back to Darlaghat when dead body of Chinta Lal was handed over to him by the police. It was only after he read a news item in a newspaper about theft of a vehicle from Jubbal, which met with an accident near Sataun, in which one person died in the accident, leg of other person got fractured and one of them fled away. How he presumed that the persons, involved in the accident of Tata Sumo, were the same persons, who had hired the vehicle at Darlaghat, is not understandable. In case the van, which was hired, had met with an accident and occupants of the van received injuries, he could have suspicion that these were the same persons involved in the crime. Tata Sumo was involved in an accident at Yona Temple and van was recovered at a place known as Bangran. 63. PW6 Brij Lal, went to Zonal Hospital, Nahan, and identified accused Inder Singh. Thereafter, he called PW7 Jagdish and Rakesh Sharma to Nahan. Thereafter, they sent a message to the Police Station at Rajgarh. The police visited Zonal Hospital Nahan. Test identification parade was held in Model Central Jail, Nahan, to identify one of the accused Rajesh Kumar. PW6 admitted in his cross-examination that he identified the accused Rajesh Kumar on the basis of photograph shown to him by the police. PW28, H.S. Verma, admitted that accused Rajesh Kumar told to him that his photograph was taken by the police, but he did not enquire where the police took his photograph. He did not question PW36 ASI Krishan Kumar regarding having taken photograph of the accused Rajesh Kumar. 64. Now, the court will advert to circumstance No.3, the manner in which disclosure statement made by the accused Inder Singh was relied upon by the prosecution. 65. He did not question PW36 ASI Krishan Kumar regarding having taken photograph of the accused Rajesh Kumar. 64. Now, the court will advert to circumstance No.3, the manner in which disclosure statement made by the accused Inder Singh was relied upon by the prosecution. 65. Learned trial court has placed strong reliance on the disclosure statement made by the accused Inder Singh and accused Rajesh Kumar vide Ext. PW3/B and PW9/A respectively. 66. PW3, Partap Singh, deposed that on 21.4.2004, accused Inder Singh, in the police custody, made a disclosure statement that he could identify the place where the deceased Chita Lal was murdered and where the flexible wire, with which he was strangulated, was thrown. He also disclosed that he could identify the place where they kept the dead body of the deceased. The disclosure statement was recorded vide Ext.PW3/B. Accused Inder Singh led them to the place where the wire was thrown. The wire was thrown at a height of 5-6 metres on the upper side of the road from where the same was recovered. The wire, Ext.P1 was lifted by Krishan Kumar, though accused Inder Singh was along with him and the same was taken into possession vide memo Ext.PW3/C. In cross-examination, he deposed that they came back to the Police Station, Rajgarh. Ext.PW3/B was prepared at the Police Station and the rest of the documents were prepared at the spot. The disclosure statement, Ext. PW3/B ought to have been made or recorded before the spot was visited and could not be prepared after visiting the spot. It shatters the case of the prosecution. 67. The recovery of wire, Ext.P1, which has been relied upon by the prosecution against the accused is also not proved in accordance with law. 68. According to PW9, Manish Thakur, accused Rajesh Kumar made a disclosure statement, Ext.PW9/A. Circumstance No.4 has not been held to be proved against the accused as per findings recorded by the learned Additional Sessions Judge. This court need not dwell into this aspect. 69. The 5th circumstance is that the vehicle being driven by Chinta Lal was found in an abandoned condition after the accident near Rajban whose number plates were found to have been changed. 70. This court need not dwell into this aspect. 69. The 5th circumstance is that the vehicle being driven by Chinta Lal was found in an abandoned condition after the accident near Rajban whose number plates were found to have been changed. 70. According to PW10, Ram Pal, on 2.1.2004 at about 5.30 A.M., the priest of Shiv Temple was Rajvir alias Raju called him and told that a vehicle had met with an accident near a tree. He went there and found the vehicle No.HP-17-4443 in the accidental condition near the peepal tree. He informed the Police Post, Rajban on telephone and the police visited the spot. The police took into possession the aforesaid vehicle vide memo Ext.PW10/A. Thereafter, on 7.5.2004, the police again visited Bangran along with accused Rajesh. The accused Rajesh Kumar identified the place of the accident of the vehicle vide memo Ext.PW10/B. PW12, HC Keshwa Nand, testified that on 2.1.2004 he was on patrolling duty at Bangran. According to him, a maruti van, on which number plate bearing No. HP-17-4443 was affixed, was lying in an accidental condition near a peepal tree, near Shiv temple. No person was on the spot and the vehicle was lying there unclaimed. The vehicle was taken into possession by him. Rapat No.14 dated 2.1.2004 was entered at Police Post Rajban. He noted down chassis and engine number of the vehicle and all the police stations of District Sirmaur were informed by a wireless message. On 28.1.2004, PW36 ASI Krishan Kumar visited the Police Post, Rajban along with owner of the aforesaid vehicle, Rakesh Kumar. He identified the same to be owned by him. The aforesaid vehicle was handed over to PW36 ASI Krishan Kumar in terms of the order of the court. 71. The prosecution has tried to establish that Rajesh Kumar had received injuries in the accident. However, PW22, Dr. Lalit Gupta, deposed in his examination-in-chief that it was not possible to give the age of the scars because they were of more than two weeks duration. Rajesh Kumar was referred for opinion about the age of the scars either to IGMC, Shimla. Rajesh Kumar was thereafter examined by PW27, Dr. V.K. Mishra and Dr. H.S. Shekh on 6.5.2004 at 10.00 A.M. According to them, age of injury No.1 was between 2 to 6 months. In all probability it was lacerated wound. Rajesh Kumar was referred for opinion about the age of the scars either to IGMC, Shimla. Rajesh Kumar was thereafter examined by PW27, Dr. V.K. Mishra and Dr. H.S. Shekh on 6.5.2004 at 10.00 A.M. According to them, age of injury No.1 was between 2 to 6 months. In all probability it was lacerated wound. Age of injury No. 2 was more than six months. In cross-examination, he deposed that his opinion was based on probabilities. He had also not produced the record. 72. The prosecution has not linked the occupants of Tata Sumo with the alleged crime. The van met with an accident, as per prosecution, at Bangran and Tata Sumo met with an accident at Yona Temple, Kamrau. According to PW11, ASI Ram Singh, Tata Sumo bearing registration No. HP-01-8406 was stolen from the area falling under jurisdiction of Police Station Jubbal, where a case of theft was registered. 73. The post mortem on the body of deceased was conducted by PW21 Dr. Rita Nayar on 30.12.2003. According to the post mortem report, time gap between the date of deceased and post mortem of the deceased was 24-48 hours. It means that death might have occurred either on 29 or 28.3.2003. Tata Sumo met with an accident on 10.1.2004. Thus, according to the prosecution case the accused remained in the same area from 28.10.2003, where the incident is alleged to have taken place, which as per the evidence brought on record, is not believable. 74. PW6 Brij Lal deposed that he went to Nahan after coming to know on 10.1.2004 to see the injured person. However, PW7 Jagdish deposed that he and Brij Lal were called straightway to Nahan. 75. It is necessary in the case of circumstantial evidence to prove the entire chain. The chain of circumstances must point out towards guilt of the accused and if one element in the chain is missing, the entire case of the prosecution is bound to fail. The prosecution has failed to prove that the vehicle was hired by the accused persons at Darlaghat. The occupants of the Tata Sumo could not be linked with the hiring of Taxi at Darlaghat. The disclosure statement of the accused Inder Singh was not recorded in accordance with law. Firstly the spot was visited and thereafter, disclosure statement was recorded in the Police Station as per statement of PW3 Pratap Singh. The occupants of the Tata Sumo could not be linked with the hiring of Taxi at Darlaghat. The disclosure statement of the accused Inder Singh was not recorded in accordance with law. Firstly the spot was visited and thereafter, disclosure statement was recorded in the Police Station as per statement of PW3 Pratap Singh. As noticed above, the disclosure statement of the accused Inder Singh ought to have been recorded prior to identification of the spot by him. The prosecution has failed to link the accused with the alleged crime and it cannot be said that the accused are the only persons, who have committed the crime and none else. 76. Their Lordships of Hon’ble Supreme Court in Shanmughan vs. State of Kerala, (2012) 2 Supreme Court Cases 788 have held that when a case is sought to be proved by prosecution on the basis of circumstantial evidence, burden on prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with guilt of accused. Their Lordships have held as under:- “7. We take up for consideration the last submission made by the learned counsel for the appellant. We are inclined to agree that when a case is sought to be proved by the prosecution on the basis of circumstantial evidence, the burden on the prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with the guilt of the accused. Any reasonable doubt in proving the circumstances must be resolved in favour of the accused. The accused must be given the benefit of any fact or circumstance which is consisted with his innocence, which is to be presumed, unless the contrary is proved by chain of circumstances.” 77. Their Lordships of Hon’ble Supreme Court in Bruesh Mavi vs. State (NCT of Delhi), (2012) 7 Supreme Court Cases 45 have held that in order to sustain conviction, the prosecution is required to prove beyond reasonable doubt with clear inference that it was accused and accused only who committed the crime. Their Lordships have held as under:- 26. The brief conspectus of facts set out above demonstrates that there is no direct evidence to connect the accused-appellant with the firing incident involving the deceased. Their Lordships have held as under:- 26. The brief conspectus of facts set out above demonstrates that there is no direct evidence to connect the accused-appellant with the firing incident involving the deceased. The only eye-witness examined by the prosecution, namely, PW 1 has categorically deposed that the accused- appellant Brijesh was not present at the place of the crime on the date of occurrence and, in fact, he had seen the accused-appellant for the first time in court. The second person accompanying the deceased accused Satish to the STD booth along with the firearm therefore remained unidentified. The prosecution, in the absence of any direct evidence, has sought to build up its case on the basis of circumstantial evidence. 27. The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra [ (1984) 4 SCC 116 (para 153)] which principles have been consistenly followed in Tanviben Pankajkumar Divetia vs. State of Gujarat [ (1997) 7 SCC 156 ], Vikram Singh vs. State of Punjab [ (2010) 3 SCC 56 ], Aftab Ahmad Anasari vs. State of Uttaranchal [ (2010) 2 SCC 583 ], Sanatan Naskar and anr. vs. State of West Bengal [ (2010) 8 SCC 249 ] and Mohd. Arif alias ASshfaq vs. State (NCT of Delhi) [ (2011) 13 SCC 621 ]. 78. Their Lordships of Hon’ble Supreme Court in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 Supreme Court Cases 205 have held that while dealing with a case of circumstantial evidence, court must take utmost precaution whilst finding an accused guilty solely on the basis of circumstances proved before it. The prosecution must establish each instance of incriminating circumstances by way of reliable and clinching evidence. The prosecution must establish each instance of incriminating circumstances by way of reliable and clinching evidence. Circumstances so proved must form a complete chain of events so that no conclusion other than one of guilt of accused can be reached. Their Lordships have held as under:- “28. The instant case is a case of blind murder and is based entirely on circumstantial evidence, as there is no eye-witness to the said incident. 29. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , it was held by this court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused”. Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.” 79. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.” 79. Their Lordships of Hon’ble Supreme Court in Vadlakonda Lenin vs. State of Andhra Pradesh, (2012) 12 Supreme Court Cases 260 have held that in order to base conviction solely on circumstantial evidence, circumstances on which prosecution rely must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to inference which is inconsistent with any other hypothesis except guilt of accused. Their Lordships have held as under:- “12. The culpability of the accused-appellant, in the absence of any direct evidence, has to be judged on the basis of the circumstances enumerated above. The principles of law governing proof of a criminal charge by circumstantial evidence would hardly require any reiteration save and except that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law. In this regard a reference to the “five golden principles” enunciated by this Court in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 may be recapitulated for which purpose para 153 of the judgment in the above case may be usefully extracted below: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra : (1973) 2 SCC 793 where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 80. Their Lordships of Hon’ble Supreme Court in Madala Venkata Narismha Rao vs. State of Andhra Pradesh, (2012) 13 Supreme Court Cases 679 have held that in order to secure a conviction on circumstantial evidence, prosecution must prove its case by cogent, reliable and admissible evidence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof, it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. Their Lordships have held as under:- “17. The law on appreciation of circumstantial evidence is now too well settled to bear any repetition. Suffice it to say that to secure a conviction on circumstantial evidence, the prosecution must prove its case by cogent, reliable and admissible evidence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. In this regard, reference may be made to Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174 (authored by one of us, Swatanter Kumar, J).” 81. Their Lordships of Hon’ble Supreme Court in Majenderan Langeswaran vs. State (NCT of Delhi) and another, (2013) 7 Supreme Court Cases 192 have held that while dealing with conviction based on circumstantial evidence, circumstances from which conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis, i.e. the guilt of the accused. Onus lies on prosecution to prove that chain of event is complete and not to leave any doubt in the mind of Court. “3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood- stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996. 16. 11. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court. 26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else.” 82. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else.” 82. The prosecution has failed to prove that when the vehicle was hired at Darlaghat and when it crossed Giripul barrier. There are cuttings in the register maintained by the police at Giripul barrier that the vehicle No. HP-01-1482 crossed the barrier or not. Statements of PW4 Rajinder Kumar and PW5 Manjeet Singh do not inspire confidence. PW5 Manish Singh had not produced the checking register of the vehicles to establish that he stopped the vehicle No. HP-01-1482 when he was on patrolling duty at Bus Stand Rajgarh in the intervening night of 24/25.12.2003. There was overwriting in the register maintained by PW17 Rajinder Sharma, Manager, Singh Guest House at Rohroo. The overwriting was not satisfactorily explained. It is also not believable that the accused after committing the crime would go to Rohroo and stay there as per abstract of register, Ext.PW17/A on 6.1.2004 and check out from the hotel on 8.1.2004. There was also overwriting in Ext.PW17/A on the date of departure. PW18 Parvesh Sharma has been produced only to prove that the accused were in the vicinity of the area, when the crime is alleged to have been committed. The police never recovered the clothes of the accused as per the details given by PW6 Brij Lal and PW7 Jagdish. According to PW6 Brij Lal, he visited Rajgarh to identify body of his brother on 30.12.2003. He remained on the spot for 2½ hours. Surprisingly, statement of PW6 Brij Lal was not recorded at Rajgarh by PW36 ASI Krishan Lal. Why he visited Darlagaht to record statement of PW6 Brij Lal under Section 154 Cr.P.C. is perplexing. He had no occasion to go to Darlaghat to record the statement of PW6 Brij Lal. PW6 Brij Lal had not given details of accused at Rajgarh. Even PW6 Brij Lal had not stated anything at all about the identity of the accused in Mark A. The details were only given by him when PW36 Krishan Kumar visited at Darlagaht to record his statement under Section 154 Cr.P.C., on the basis of which FIR was registered. Rakesh Sharma was very material witness in this case because admittedly vehicle No.HP-01-1482 involved in the crime was owned by him. Rakesh Sharma was very material witness in this case because admittedly vehicle No.HP-01-1482 involved in the crime was owned by him. It was also expected from him to register FIR to recover the van, which went missing along with its driver. It is not the case of the prosecution that PW6 Brij Lal disclosed the details of the accused, when he had gone to identify and collect the dead body of his younger brother at Rajgarh. Why PW36 ASI Krishan Kumar visited Darlaghat for recording statement of PW6 Brij Lal under Section 154 Cr.P.C., remains unexplained. It has come in the statements of PW6 Brij Lal and PW7 Jagdish that the accused had told him that two ladies and two children would be picked up from Totu. However, when the vehicle crossed through Giri Pul as per Ext.PW4/A, only three persons excluding driver were sitting in the vehicle. It further casts doubt on the version of PW6 Brij Lal and PW7 Jagdish. 83. According to PW11, ASI Ram Singh, on 10.1.2004, a Tata Sumo bearing registration No. HP-01-8406, on which a fake number plate bearing No.HR-07-8406 was affixed, which was coming from Kamrau towards Paonta met with an accident and fell down in a Dhank at Yona Temple near Kamrau in which one person, who was driving the vehicle, whose name was later on revealed as Sanjay died on the spot. Another person, whose name was later on revealed as Inder Singh sustained injuries and was admitted at the first instance at Civil Hospital, Paonta Sahib and later on he was referred to Zonal Hospital, Nahan. An FIR No.21/04 under Sections 279, 337, 304-A dated 10.1.2004 was registered at Police Station Paonta Sahib pertaining to the accident. He had investigated the case and during investigation, the accidental vehicle was taken into possession vide memo Ext.PW11/A. The site plan, Ext.PW11/B was prepared. The search memo of the dead body Ext.PW11/C was prepared and the same was handed over to the relatives of the deceased vide memo Ext.PW11/D. The post mortem on body of the accused Sanjay Kumar was conducted and report, Ext.PW11/F was obtained. Thereafter, Tata Sumo No. HP-01-8406 was handed over to the Incharge, Police Post Saraswati Nagar, Police Station Jubbal, HC Mahesh Kumar vide memo Ext.PW11/G in terms of the order passed by the court on 14.1.2004. 84. Thereafter, Tata Sumo No. HP-01-8406 was handed over to the Incharge, Police Post Saraswati Nagar, Police Station Jubbal, HC Mahesh Kumar vide memo Ext.PW11/G in terms of the order passed by the court on 14.1.2004. 84. PW11 ASI Ram Singh, in his cross-examination specifically deposed that during the search of the dead body of the deceased, a diary was found, the factum of which was recorded in Ext. PW11/C. The diary was handed over to PW36 ASI Krishan Kumar, Police Station Rajgarh on 26.1.2004. According to him, no memo was prepared to this effect. The aforesaid factum was recorded in the zimini order dated 26.1.2004 of FIR No.21/2004. He could not state as to how many pages were in the diary. The diary was taken into possession by PW36 ASI Krishan Kumar because in that, name of Harish and various phone numbers were written. PW36 ASI Krishan Kumar came to know about the diary by means of memo Ext.PW11/C. He informed PW36 ASI Krishan Kumar telephonically on 11.1.2004 about the accident and on 26.1.2004 he visited the Police Post, Rajban. He did not think it appropriate to keep a copy of the diary in the office file of FIR No.21/2004 because there was no evidence available in the diary regarding FIR No.21/2004. PW36 ASI Krishan Kumar denied the suggestion that he had taken a diary, which had been recovered by Ram Singh from the body of Sanjay or that there were addresses and telephone numbers, on the basis of which, he was to work and trace out such persons, whose addresses and telephone numbers were in the diary. No memo was prepared to this effect. PW36 ASI Krishan Kumar admitted that when he took steps to know the antecedents of Inder Singh, he came to know that Inder Singh was involved in a theft case in Alipur, Police Station, Delhi, in which accused Rajesh Kumar was also involved. It is apparent that accused Rajesh Kumar has been roped on the basis of details taken from the diary, which was taken into possession by PW36 ASI Krishan Kumar without any memo being prepared to this effect. 85. The accused Rajesh Kumar was arrested on 26.4.2004. His test identification parade was held on 3.5.2004. The test identification parade should be conducted as soon as after the arrest of the accused. 85. The accused Rajesh Kumar was arrested on 26.4.2004. His test identification parade was held on 3.5.2004. The test identification parade should be conducted as soon as after the arrest of the accused. As per statement of PW6 Brij Lal, photograph of the accused was shown to him. More over, PW6 Brij Lal had only interacted with the accused for about 2-3 minutes on 24.12.2003 and test identification parade was conducted on 3.5.2004, i.e. after a period of about five months. 86. Their Lordships of Hon’ble Supreme Court in Budhsen and another vs. State of U.P., AIR 1970 Supreme Court 1321 have held that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. Their Lordships have held as under:- “7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this, that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially govern by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the Court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court. Shri Pratap Singh, Magistrate, who conducted the identification, has appeared at the trial as P. W. 20. The identification memo in respect of Naubat, appellant, is Ex. Ka 20 dated October 21, 1967 and in respect of Budhsen is Ex. Ka 21, dated October 28, 1967.” 87. Their Lordships of Hon’ble Supreme Court in Hasib vs. The State of Bihar, AIR 1972 Supreme Court 283 have held that the test identification parade has to be held at the earliest opportunity. The value of identification parades depends on the effectiveness of the precautions taken against the identifying witnesses having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Their Lordships have held as under:- “6. But otherwise too the identification proceedings in the present case do not inspire confidence. It appears that several test identification parades were held for identifying the accused persons. So far as the present appellant is concerned P.W. 10 appears to have identified him on February 14, 1963 though the appellant had been arrested as early as January 29, 1963 at about 4.15 a.m. Now, identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimize the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by (hose responsible for holding them against the identifying witness having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. In the present case the first identification parade was held on February 6, 1963 when several accused persons were included for identification in the parade. The present appellant was not included in the parade on that day. The identification parade with respect to him was held on February 14, 1963, the reason given for this delay that P.W. 10 was till then in the hospital. According to his own evidence in the trial Court, however, P.W. 10 admits to have been discharged from the hospital on February 9, 1963 In his statement before the committing magistrate (which was read as evidence by the trial Court Under Section 288, Cr. P.C.) he had stated that he had come out of the hospital 7 or 8 days after his admission. It may be recalled that he was out of the hospital on Februarys, 1963. But even if he was discharged on February 9, 1963 it is wrong to say that the test identification parade could not be held before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this apart, it is not shown that this witness even though in the hospital for treatment of his injuries to his hand and face was not in a position to be taken from the hospital for identification as soon as the appellant was arrested or at least on February 6, 1963 when identification of a number of accused persons was held. We are also not satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on February 6, 1963. Ft. however, appears that because the result of this parade was not considered satisfactory by the investigating agency an application was made to the Court of the magistrate stating that the identifying witnesses had got confused and, therefore, a fresh test identification parade should be held. Thereafter several identification parades were held on 14, 21st and 28th February, 1963. This procedure only serves to give rise to grave suspicion about the bona fides of the investigating agency. And then we find from the evidence of Jhari Lal Mahto, Sub Deputy Magistrate (P.W. 13) who had held the T.I. parade on February 14, 1963 that two identification parades were held on that day within half an hour of each other one at 5 p.m. and the other at 5.30 p.m. At both these parades P.W. 10 was present. In the first parade the appellant is stated not to have been included in the suspects to be identified. No reason is shown for his non-inclusion in that parade. It may be recalled that both the parades were held in the sub-jail in which all the accused persons were lodged. The evidence of P W. 13 is also somewhat unsatisfactory and we are far from impressed by his testimony with respect to the precautions taken by him for fair test identification parades. In his cross-examination a suggestion was thrown that there was some kind of interpolation in his report of the first T.I. parade held at 5 p.m. from which it could be suspected that the appellant was present in that parade but was not identified by P.W. 10, Whether or not the appellant was included in the suspects to be identified at 5 p.m. in either case we are unable to attach much value to his identification parade.” 88. Their Lordships of Hon’ble Supreme Court in State of Uttar Pradesh vs. Boota Singh and others, AIR 1978 Supreme Court 1770 have held that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. Their Lordships have held as under:- “26. In support of its view the High Court relied on a decision of this Court in Budh Sen v. State of U.P. (supra). We feel that the High Court has completely misdirected itself on this point. In the first place the decision of this Court relied upon by the High Court does not at all apply to the facts of the present case. In Budh Sen v. State of U.P. (supra) what was held by this Court was that where an accused is not known to the witness from before and there is no T.I. parade, but the witness identifies the accused for the first time in court such an identification is valueless. In this connection, this Court has observed as follows :- (at .p. 1324) "As a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding." When this Court held that evidence of identification for the first time at the trial was of a weak character, it merely meant that where the evidence of a witness in court is not tested by prior identification parade held in jail not much reliance can be placed on such an evidence. This is however not the case here, nor can we take the aforesaid decision to lay down a rule of universal application that the identification evidence is a very weak type of evidence. Where the witness correctly identifies the accused at a T.I. parade held by a Magistrate after observing all the essential formalities and taking the necessary precautions and then identifies the accused also in court the evidence of identification can be believed unless the evidence of witness suffers from some other infirmity. Moreover, the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. In the present case, it is mentioned in the confession of Boota Singh and is proved by the evidence of P. Ws. 2, 8 and 14 that the respondent had a talk with P.W. 2 Inder Singh in the presence of other witnesses for quite some time and struck a deal regarding the taxi and gave a receipt to Inder Singh. These witnesses, therefore, were in a position to notice the features of the respondent Boota Singh as closely as possible. In the circumstances, therefore, we are unable to agree with the High Court that the evidence of identification of these witnesses is a weak type of evidence. We also disapprove the universal rule of application laid down by the High Court that the evidence of identification is a weak type of evidence. In the circumstances, therefore, we are unable to agree with the High Court that the evidence of identification of these witnesses is a weak type of evidence. We also disapprove the universal rule of application laid down by the High Court that the evidence of identification is a weak type of evidence. For the reasons given above, we see no reasons to distrust the evidence of P.W. 2, 8 and 14 and we hold that the prosecution has proved beyond reasonable doubt that the respondent Boota Singh had approached Inder Singh for hiring the taxi and Inder Singh allowed Boota Singh to take the taxi along with his son Lal Singh, deceased. In view of the fact that Inder Singh and Jagir Singh identified Boota Singh at T.I. parade which has been proved by Magistrate M. L. Sharma, P.W. 23 there was no reason to distrust the evidence of identification of these two witnesses as against Boota Singh. For the same reasons there was no reason to distrust the evidence of P.W. 8 Pritam Singh and P.W. 14 Jagir Singh when they had identified the respondent Trilok Singh at a T.I. parade and also in court. The finding of the High Court on this point is, therefore, wholly incorrect both in law and on facts.” 89. Their Lordships of Hon’ble Supreme Court in Sampat Tatyada Shinde vs. State of Maharashtra, AIR 1974 Supreme Court 791 have held that the evidence of test identification is admissible under Section 9 of the Evidence Act. It is at best supporting evidence. It can be used only to corroborate the substantive evidence given by the witness in the court regarding identification of the accused. Their Lordships have held as under:- “16. The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also.” 90. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also.” 90. The division bench of Hon’ble Kerala High Court in Mohanan Nair and others vs. State of Kerala, 1989 Cri. L.J. 2016 has held that the court should approach the evidence of identification with the reasonable doubts of an intelligent person and accept it only if those doubts are removed. The division bench has laid down following principles for conducting test identification parade:- “7. Although in assessing the evidence of identification it is not possible or desirable to lay down any hard and fast rules, certain guiding principles could be stated. One is the basic principle of criminal law that a fact or circumstance should be proved before it is relied on against an accused. The evidence of identification is no exception to the definition of the word "proved" in S.3 of the Evidence Act. The court should approach the evidence of identification with the reasonable doubts of an intelligent person and accept it only if those doubts are removed. In order to remove these doubts, the touch stones to be adopted could be (i) fair, if not good opportunity of the witness for observation, (ii) reasonable time within which the identification was made, (iii) reliable power of observation of the witness, (iv) his credibility, and (v) the fact whether the witness got any opportunity to identify the accused after arrest. The crucial requirement is the satisfaction of the court on the acceptability of the identification (Anwar v. State, AIR 1961 All 50 : (1961 (1) Cri LJ 22).) 8. If identification parade was not properly and regularly conducted, it cannot operate as reliable corroboration regarding identification in court (Yeshwant v. State of Maharashtra, AIR 1973 SC 337 : (1972 Cri LJ 1254)). Though any person can conduct a test identification parade, Magistrates are preferred because of the assurance of regularity Asharfi v. State, AIR 1961 All 153 : (1961 (1) Cri LJ 340). His identification memo is a record of the statement which the identifier expressly or impliedly made before him. It is a former statement of the identifier. In court it is usable not only for contradiction u/Ss. His identification memo is a record of the statement which the identifier expressly or impliedly made before him. It is a former statement of the identifier. In court it is usable not only for contradiction u/Ss. 145 or 155, but also for corroboration u/S.157 of the Evidence Act. It is subject to the exception that if it was before the police it would be hit by S.162 of the Cr. P.C. and therefore inadmissible for corroboration. If the person holding the identification is a competent Magistrate, S.164 of the Cr. P.C. applies and his identification memo is admissible u/S.80 of the Evidence Act without proof for what it is worth.” 91. Their Lordships of Hon’ble Supreme Court in Shaikh Umar Ahmed Shaikh and another vs. State of Maharashtra, AIR 1998 Supreme Court 1922 have held that the designated court recording finding as to strong possibility of accused having been shown to witnesses before identification parade, conviction, however, recorded by relying on identification of accused by said witness in the court is not justified when accused were already shown to the witnesses. Their identification in the court by said witnesses was meaningless. Their Lordships have held as under:- “8. The Designated Court after having rejected the evidence of identification parade on the ground that the suspects were possibly shown to the witnesses, relied upon the evidence of identification of the accused in the Court by the two witnesses and on that evidence recorded conviction against the appellants. No doubt, the evidence of identification parade is not a substantive evidence, but its utility is for purposes of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. It is true that in the present case, PW-2 and PW-11 identified the two accused who are the appellants before us in the Court. But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by PW-2 and PW-11 by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the Court by the two eye-witnesses and had caused failure of justice. Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside. We accordingly set aside the judgment and order dated 14-10-1997 passed by the Additional Judge. Designated Court for Greater Bombay in T.S.C. No. 21 of 1994, convicting the appellants. The appellants are acquitted of charges. The appeal is allowed. The appellants are entitled to be released forthwith. We order accordingly.” 92. Their Lordships of Hon’ble Supreme Court in Dana Yadav alias Dahu and others vs. State of Bihar, AIR 2002 Supreme Court 3325 have held that the test identification parade should be held by investigating agencies with reasonable dispatch. Their Lordships have held as under:- “38. In view of the law analysed above, we conclude thus:- (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. Their Lordships have held as under:- “38. In view of the law analysed above, we conclude thus:- (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. (b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court. (c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court. (d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.” 93. Their Lordships of Hon’ble Supreme Court in Lal Singh and others vs. State of U.P., (2003) 12 Supreme Court Cases 554 have held that the court should find out whether witnesses had sufficient opportunity to see the accused at the time of the occurrence and whether had any chance to see the accused before test identification parade. Their Lordships have further held that whether there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. Their Lordships have held as under:- “28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard and fast rule can be laid down. The Court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The Court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the Court must adopt a cautious approach so as to prevent miscarriage, of justice. In cases of inordinate delay it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing ht offence. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing ht offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the Court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not beheld to be fatal. It all depends upon the facts and circumstances of each case. 43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety.” 94. The Division Bench of Hon’ble Madras High Court in Manoharan vs. State by Inspector of Police, 2006 Cri. L.J. 4671 has held that mere identifying person in parade, in absence of any acceptable evidence from witnesses with reference to last seen theory, cannot give out a formidable material to connect accused with crime in question. The Division Bench has held as under:- “11. It is true that P.Ws. 24 and 25 have given statement under S. 164 of Cr. P.C. before the Judicial Magistrate on 27-7-2000. It is also true that P.W. 24 alone identified the accused in the identification parade conducted on 31-7-2000. The Division Bench has held as under:- “11. It is true that P.Ws. 24 and 25 have given statement under S. 164 of Cr. P.C. before the Judicial Magistrate on 27-7-2000. It is also true that P.W. 24 alone identified the accused in the identification parade conducted on 31-7-2000. Admittedly, when the accused was questioned by the Judicial Magistrate after the identification parade was over, the accused complained to the Judicial Magistrate that he was shown to the witnesses before the parade and as a matter of fact, both were going in a Police van, Therefore, mere identifying the person in the parade, in the absence of any acceptable evidence from these witnesses, viz., P.Ws. 24 and 25 with reference to the last seen theory cannot give out a formidable material to connect the accused with the crime in question.” 95. The prosecution has failed to prove the case against the accused. Neither chain of events is complete nor the circumstances lead to the conclusion that the crime was committed by the accused and none else. The trial court has convicted the accused on a mere superfluous approach without in-depth analysis of the relevant facts. 96. Accordingly, the appeals are allowed and the judgment of conviction and sentence dated 15.11.2007, under Section 302 read with Section 34 of the Indian Penal Code, is set aside. The accused are acquitted of the charges framed against them. The fine amount, if any deposited by them is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case. 97. The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith.