JUDGMENT Sanjay Karol, J. Assailing the judgment dated 7.7.2008, passed by learned Addl. Sessions Judge (Fast Track Court), Chamba District Chamba, H.P., in Sessions Trial No. 11/2008/05, titled as State of H.P. vs. Chamaru Ram & others, whereby appellants-accused stand convicted for having committed offences punishable under the provisions of Sections 302 and 201 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and pay fine of Rs. 20,000/- each for an offence punishable under Section 302 read with Section 34 IPC and rigorous imprisonment for a period of one year and fine of Rs. 5000/- each for an offence punishable under Section 201 read with Section 34 IPC, convict namely Chamaru Ram, Prithi alias Prithu and Shiv Ditta have filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973. 2. Briefly stated, it is the case of prosecution that since 7.8.2004, Sh. Pritam Chand (deceased) resident of Village Adhwar was missing. He had left for village Bhasua, where, on 14.8.2004, his dead body was found lying in the fields. Smt. Fatta (PW-16) informed the police and rapt roznamcha (Ext. PW-19/A) was recorded at police station Kihar. Inquest report (Ext. PW-19/B) was prepared; dead body was sent for post mortem which was conducted by Dr. Umesh Dhiman (PW-10) at the Zonal Hospital Chamba and Post Mortem Report (Ext. PW-10/C) prepared after taking into account report of the chemical analyst (Ext. PW-10/B), taken on record. To ascertain the reason of death of Sh. Pritam Chand, meeting of the villagers was convened by Sh. Dharam Singh Pathania (not examined), Chairman of the village. In the said meeting Chamaru Ram (accused No. 1) confessed to have murdered Pritam Singh along with his two companions namely Prithvi Raj (accused No. 2) and Shiv Ditta (accused No. 3). Such confession in writing, was made in the presence of co-villagers including Sh. Doom Ram (PW- 1). Sh. Doom Ram (PW-1), father of the deceased reported the matter to the police on 13.9.2004 and his statement (Ext. PA) under Section 154 Cr.P.C. was recorded, on the basis of which F.I.R. No. 59 of 2004 (Ext. PW-19/C), dated 13.9.2004 was registered against the accused persons. Investigation revealed that accused had killed the deceased by using weapons i.e. danda (Ext. P2) and rope (Ext. PA) under Section 154 Cr.P.C. was recorded, on the basis of which F.I.R. No. 59 of 2004 (Ext. PW-19/C), dated 13.9.2004 was registered against the accused persons. Investigation revealed that accused had killed the deceased by using weapons i.e. danda (Ext. P2) and rope (Ext. P1), which accused Chamaru Ram got recovered pursuant to his disclosure statement (Ext. PD) in the presence of Sh. Kanth Ram and Sh. Hans Raj (PW-2). 3. Investigation revealed complicity of only accused Chamaru Ram against whom challan was filed in the Court. However accused Prithvi Raj and Shiv Ditta were kept in column No. 12 of the final report submitted by the police. Never the less, even these accused persons were summoned but discharged by the trial Court vide order dated 8.5.2006. Accused Chamaru Ram was charged for having committed offences punishable under the provisions of Sections 302 and 201 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. Subsequently in the midst of trial, on an application filed by the State under Section 319 Cr. P.C., accused Prithvi Raj and Shiv Ditta were arrayed as parties (co-accused) on 29.9.2006 and charged for having committed offences punishable under the provisions of Sections 302 and 201 both read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as nineteen witnesses and statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took up a plea of false implication. No evidence was led in defence by the accused. 6. Appreciating the testimonies of prosecution witnesses, trial Court convicted the accused for having committed the charged offences. Hence the present appeal. 7. We have heard learned counsel for the parties and perused the record. 8. We find that while convicting the accused, trial Court relied upon the testimonies of independent witnesses, in whose presence accused admitted his guilt and made disclosure statement, pursuant whereof accused Chamaru Ram got recovered weapons of offence (Ext. P1 & P2) vide recovery memo (Ext. PB). 9. We find the judgment rendered by the trial Court to be absolutely sketchy. Trial Court has not bothered to fully appreciate and individually deal with the testimonies of the witnesses. P1 & P2) vide recovery memo (Ext. PB). 9. We find the judgment rendered by the trial Court to be absolutely sketchy. Trial Court has not bothered to fully appreciate and individually deal with the testimonies of the witnesses. Contradictions, material in nature, shaking the foundation of the prosecution story stand ignored which has resulted into grave injustice. Even the law referred to by the learned counsel representing the accused has not been considered at all. 10. We may point out that accused Chamaru Ram stands convicted for having committed an offence under Section 34 of the Indian Penal Code, in relation to which no charge was framed against him. Also charges were framed against accused Prithvi Raj and Shiv Ditta subsequently. But these factors have not weighed with us at all, in the process of decision of the present appeal. 11. Identity of the deceased is not in dispute. Post mortem of dead body of Sh. Pritam Chand was conducted by Dr. Umesh Dhiman (PW-10), who upon close examination found no ligature marks on the dead body. Cause of death is stated to be multiple fractures of ribs on left side. Significantly PW-10 found both anti-mortem and postmortem injuries on the dead body. The Doctor opined that injuries could have been sustained by fall. Noticeably Doctor does not state that injuries could have been caused with the weapons of offence (Ext. P-1 and P-2), which in any event, were also not shown to him in Court. 12. Admittedly there are no eye witnesses to the incident. Dead body was recovered on 14.8.2004 from the fields not owned or possessed by the accused. Inspector Krishan Lal (PW-19) clearly deposes such fact. Crucially he does not assign any reason for not registering the F.I.R. at the time of recovery of dead body. He states that F.I.R. (Ext. PW-19/C), dated 13.9.2004 was registered on the statement of PW-1. Noticeably time of recording of the F.I.R. is 12.20 p.m. and in the statement (Ext. PA) it is clearly recorded that accused Chamaru Ram confessed his guilt on 12.9.2004. In our considered view, prosecution has failed to explain the reason for delay in promptly lodging the complaint against the accused. Delay of one day clearly acquires significance in view of concealment of written confession, allegedly made by accused Chamaru Ram in the meeting held on 12.9.2004. In our considered view, prosecution has failed to explain the reason for delay in promptly lodging the complaint against the accused. Delay of one day clearly acquires significance in view of concealment of written confession, allegedly made by accused Chamaru Ram in the meeting held on 12.9.2004. It is in this backdrop we find that the investigating agency did not find anything incriminating against accused Shiv Ditta and Prithvi Raj and rightly did not implead them as party accused. 13. Prosecution case primarily rests upon the testimony of prosecution witnesses namely Sh. Doom Ram (PW-1), Sh. Hans Raj (PW-2), Sh. Rustam (PW-3), Sh. Amar Singh (PW- 4), Sh. Jagdish Chand (PW-5), Sh. Govind Ram (PW-6), Sh. Sobhia Ram (PW-7), Sh. Piar Chand (PW-8), Sh. Baldev Ram (PW-9), Sh. Doom Ram s/o Sh. Shanu Ram (PW-14) and Sh. Jagdish (PW-15). Conjoint reading of their testimonies would only reveal that there are material contradictions with regard to the time, place, manner and conduct of the meeting which allegedly took place on 12.9.2004, where allegedly accused Chamaru Ram confessed his guilt. 14. In Court, Sh. Doom Ram (PW-1), father of the deceased does not state that prior to 12.9.2004 he suspected anyone, much less the accused, of having murdered his son, whose dead body was found on 14.8.2004. Deceased was missing for at least six days. No complaint was ever lodged with anyone or matter reported to the police. He states that Sh. Dharam Singh Pathania, Chairman, had convened a meeting on 12.9.2004 and “on being asked”, accused Chamaru, who was also present, confessed his guilt of having murdered the deceased. Prithvi Raj gave a blow with a danda and Shiv Ditta pressed the neck of the deceased. He states that Prithvi Raj, his wife’s cousin stood deprived of some property as a result of which he “may” have been nursing a grudge against him. Testimony of this witness on the point of confession stands corroborated by Sh. Hans Raj (PW-2), Sh. Rustam (PW-3), Sh. Amar Singh (PW-4), Sh. Jagdish Chand (PW-5), Sh. Govind Ram (PW-6), Sh. Sobhia Ram (PW-7), Sh. Piar Chand (PW-8), Sh. Baldev Ram (PW-9), Sh. Doom Ram s/o Sh. Shanu Ram (PW-14) and Sh. Jagdish (PW-15) in their examination in chief. 15. Hans Raj (PW-2), Sh. Rustam (PW-3), Sh. Amar Singh (PW-4), Sh. Jagdish Chand (PW-5), Sh. Govind Ram (PW-6), Sh. Sobhia Ram (PW-7), Sh. Piar Chand (PW-8), Sh. Baldev Ram (PW-9), Sh. Doom Ram s/o Sh. Shanu Ram (PW-14) and Sh. Jagdish (PW-15) in their examination in chief. 15. However, from the conjoint reading of testimonies of these witnesses what emerges is that meeting was convened on the asking of the police, as according to PW-1 “meeting took place outside the Police Station in Kihar at about 1/1.30 PM. The people had assembled as they were called by the police for the purpose of investigation. When accused Chamaru Ram confessed his guilt inside the Police Station, the SHO, MHC, other police officials, my-self, Kishan and Shri Hans Raj were present”. In this backdrop can it be said that the alleged confession of the accused is voluntary in nature. Having minutely examined the cross examination part of testimonies of the aforesaid witnesses, we find it not to be so. 16. Admissibility of such confession apart, if accused had confessed his guilt in the presence of police officials, then why is it that the Investigating Officer (PW-19) did not immediately register F.I.R. or arrest the accused there and then. After all there is an unexplained gap of 24 hours in registration of the F.I.R. 17. Crucially Sh. Dharam Singh Pathania, Chairman, was not examined in Court. His testimony was absolutely necessary. This we say so for the reason that contradictions, which we find to be relevant and material, have rendered the version of these prosecution witnesses to be absolutely shaky and unbelievable. Witnesses of confession cannot be said to be trustworthy, reliable or to have deposed truthfully. After all death had taken place in a village and police was searching for clues which they could not find. Thus delay, in the instant case, in reporting the matter to the police is fatal. Also police has not furnished any explanation of not taking prompt action. 18. Contradictions, embellishments, exaggerations and improbabilities are galore. Sh. Rustam (PW-3) has contradicted the testimonies of PW-1 and PW-2 by stating that meeting took place near the shop of Sh. Dharam Singh Pathania. He states that meeting started at 11.00 a.m. and ended at 3.00/4.00 p.m., which version stands contradicted by Sh. Jagdish Chand (PW-5) according to whom, meeting went on only for one hour. Sh. Rustam (PW-3) has contradicted the testimonies of PW-1 and PW-2 by stating that meeting took place near the shop of Sh. Dharam Singh Pathania. He states that meeting started at 11.00 a.m. and ended at 3.00/4.00 p.m., which version stands contradicted by Sh. Jagdish Chand (PW-5) according to whom, meeting went on only for one hour. Also PW-5 states that after the meeting, all went to the police station and informed the police about the confession. Then why did the police not take any action. Further Sh. Rustam (PW-3) and Amar Singh (PW-4) do not remember names of accomplices of the accused. It is unbelievable that these persons would forget such names particularly in a case of death of a covillager. It is not that accomplices of the accused were from outside and/or their identities were not known to these witnesses. 19. Sh. Govind Ram (PW-6) states that meeting was convened by him. Thus he belies the version of PW-1. It has come on record through the testimony of Sh. Sobhia Ram (PW-7) that police station Kihar is just at a distance of 50 mts. from the place of meeting. He gives yet another version that it was Pradhan Sh. Desh Raj who had convened the meeting of the villagers. To us it appears that the story of public meeting and the accused Chamaru Ram having confessed his guilt is nothing but an act of concoction. Statement of Sh. Doom Ram s/o Shanu Ram (PW-14) cannot be said to be inspiring confidence at all. It appears he was not even present in the meeting. According to this witness meeting was convened at 9.00 a.m. Also according to him 35 to 40 persons attended the meeting whereas according to other witnesses 150 to 300 persons were present and the meeting started at about 11.00 a.m. 20. Sh. Rustam (PW-3) categorically states that Chamaru Ram admitted his guilt in writing naming two other persons as his accomplice. Now who are these two persons, he does not state. If Chamaru Ram had admitted his guilt of having murdered the deceased with the help of co-accused Prithvi Raj and Shiv Ditta, as is so stated by PW-1, when why is it that PW-3 does not disclose such names. We find PW-14 and PW-15 to have stated facts for the first time in Court. Police did not record their statements. Sh. We find PW-14 and PW-15 to have stated facts for the first time in Court. Police did not record their statements. Sh. Jagdish (PW-15) has clearly contradicted the testimony of other witnesses as according to him no confession in writing was ever made by accused Chamaru Ram, thus, totally shattering the testimony of all the independent prosecution witnesses. 21. Crucially PW-3 states that Chamaru Ram had admitted his guilt in writing which paper was handed over to Sh. Dharam Singh Pathania. Also Sh. Hans Raj (PW-2) states that the chit/paper was handed over by accused Chamaru Ram to Sh. Dharam Singh Pathania who in turn handed it over to Sh. Doom Ram (PW-1). But PW-1 does not corroborate such version and the document has not seen the light of the day. It was not placed on record. It is in this background that withholding of Dharam Singh Pathania, Chairman, as a witness acquires significance. In our considered view if testimonies of PW-1 and PW-7 are to be believed with regard to written confession, then adverse inference, for not having placed or proved the same on record, is to be drawn against the prosecution under the provisions of Section 114 of the Indian Evidence Act, 1872. 22. Law with regard to confessional statement is now well settled. It is a settled position of law that extra judicial confession is a very weak kind of evidence requiring material corroboration. [See: Sahadevan & another vs. State of Tamil Nadu, (2012) 6 SCC 403 ]. 23. The Apex Court in R. Kuppusamy vs. State, Represented by Inspector of Police, Ambeiligai, (2013) 3 SCC 322 , relying upon its earlier decisions however clarified that each case has to be considered on its own facts. Despite the inherent weakness of an extra-judicial confession as a piece of evidence, the same cannot be ignored if it is otherwise shown to be voluntary and truthful. Such statement cannot be termed as tainted evidence. Corroboration thereof is required only as a measure of abundant caution. Relying upon the decision rendered in Gura Singh vs. State of Rajasthan, (2001) 2 SCC 205 , the Court categorically held that if the testimony of the witness to whom confession is made is found to be trustworthy and that the confession was true and voluntary, conviction can be founded on such evidence alone. Thus credibility of a witness gains significance. 24. Thus credibility of a witness gains significance. 24. Further, the apex Court in Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 , has held as under: “29. The issue that emanates for appreciation is whether such confessional statement should be given any credence or thrown overboard. In this context, we may refer with profit to the authority in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 , wherein, after referring to the decisions in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 , Maghar Singh v. State of Punjab, (1975) 4 SCC 234 , Narayan Singh V. State of M.P., (1985) 4 SCC 26 , Kishore Chand v. State of H.P., (1991) 1 SCC 286 and Baldev Raj v. State of Haryana,1991 Supp (1) SCC 14, it has been opined that it is the settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and his evidence is credible. The evidence in the form of extrajudicial confession made by the accused before the witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that it was true and voluntarily made, then the conviction can be founded on such evidence alone. The aspects which have to be taken care of are the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. That apart, before relying on the confession, the court has to be satisfied that it is voluntary and it is not the result of inducement, threat or promise as envisaged under Section 24 of the Act or brought about in suspicious circumstances to circumvent Sections 25 and 26. 30. Recently, in Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 , after referring to the rulings in Sk. 30. Recently, in Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 , after referring to the rulings in Sk. Yusuf v. State of W.B., (2011) 11 SCC 754 and Pancho v. State of Haryana, (2011) 10 SCC 165 , a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extrajudicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law.” [Emphasis supplied] 25. While construing the provisions of Sections 3 and 30 of the Indian Evidence Act, 1872, in a case where confession is made by co-accused, the Constitution Bench of the apex Court in Haricharan Kurmi vs. State of Bihar, AIR 1964 Supreme Court 1184, held as under:- “As a result of the provisions contained in S. 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.” [Also see: Pancho vs. State of Haryana, (2011) 10 SCC 165 ] 26. The testimonies of the witnesses are uninspiring in confidence and not worthy of credence. They cannot be said to be reliable or trustworthy witnesses. In the instant case, there is serious doubt if not conclusive proof about the voluntary nature of the alleged confessional statement made by the accused. In the instant case we find the act of confession itself, not to have been established and proved on record. 27. What is also significant is the contradiction in the testimony of Sh. Hans Raj (PW-2) and Sh. Krishan Lal (PW- 19). According to PW-2, accused Chamaru Ram made a disclosure statement and on 13.9.2004 took the police party to the place where he had concealed the weapons of offence. Whereas according to PW-19 such disclosure statement was made on 17.9.2004 after he was arrested on 14.9.2004. Disclosure statement (Ext. PD) records the date of disclosure to be 17.9.2004. On this issue we may also observe that PW-1 has come out with yet another version. He states that police party recovered the danda within 15 – 20 minutes after accused Chamaru Ram admitted his guilt which means that he was arrested on 12.9.2014 and recovery was effected very same day. Thus either of the witnesses have deposed falsely, rendering the prosecution case to be false. 28. Also we find that there is no link evidence to establish/corroborate the guilt of the accused. Weapon of offence, which did not contain any blood, was not shown to the Doctor (PW-10). Thus either of the witnesses have deposed falsely, rendering the prosecution case to be false. 28. Also we find that there is no link evidence to establish/corroborate the guilt of the accused. Weapon of offence, which did not contain any blood, was not shown to the Doctor (PW-10). In fact, no ligature marks were found on the dead body. As such, recovery of weapons of offence allegedly used by the accused, in the commission of crime is not linked to establish the guilt of the accused. Disclosure statement also cannot be said to have been made voluntarily which led to the recovery of weapons of offence. Testimony of relevant witnesses including the Investigating Officer (PW-19) and PW-2 already stands considered in that regard. 29. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused persons stand wrongly convicted for the charged offence. 30. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 7.7.2008/8.7.2008, passed by Addl. Sessions Judge, Fast Track Court, Chamba, Distt. Chamba, H.P., in Sessions Trial No. 11/2008/05, titled as State of Himachal Pradesh vs. Chamaru Ram & others, is set aside and all the accused persons namely Chamaru Ram, Prithi alias Prithu and Shiv Ditta are acquitted of the charged offences. They be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to them. Release warrants be prepared accordingly. Appeal stands disposed of, so also pending application(s), if any.