JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 22.12.2012, rendered by the learned Addl. Sessions Judge (FTC), Chamba, H.P. in Sessions Trial No. 5/12, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 302 IPC, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- and in default of payment of fine, he was further ordered to undergo rigorous imprisonment for six months. 2. The case of the prosecution, in a nut shell, is that on 18.12.2011 at around 6:05 PM, on receipt of telephonic information from Madho Ram (PW-5), vide rapat No. 21 in daily diary at PS Tissa, Inspector Jagdish Chand (PW-19) alongwith other police officials reached near village Kandwas and found dead body of a boy, namely, Harish son of Bhagat Ram (PW-1). It was dark, therefore, the dead body was kept safe. On next day, i.e. 19.12.2011 in the morning, after post mortem examination of the deceased, complainant Bhagat Ram (PW-1) father of the deceased gave his statement under Section 154 Cr.P.C. vide Ext. PW- 1/A to the effect that on 18.12.2011, he deputed his deceased son Harish to bring nails from the shop in Village Sagluga. He had given him Rs. 60/-. He kept on waiting for his son till 5:00 PM but he did not turn up. He rang up at Village Sagluga to Himmat Singh (PW-3) to inquire about the whereabouts of his deceased son. PW-3 Himmat Singh told him that he had not seen his son. Then he went in search of his deceased son and at around 5:00 PM, he found the dead body of his son lying in the fields of Baldev at Khill in Village Fuldwas at a distance of 500-600 meters from his village. His son was lying with his face upwards and heavy stone Ext. P-2 weighing about 20 kg was found kept on his belly. His face was smeared with blood. He raised screams and after a while Himmat Singh (PW-3) came on the spot and informed about the dead body of deceased to his family members. Himmat Singh PW-3 informed Narli Devi (PW-4) on telephone and thereafter other villagers also came to the spot. His face was smeared with blood. He raised screams and after a while Himmat Singh (PW-3) came on the spot and informed about the dead body of deceased to his family members. Himmat Singh PW-3 informed Narli Devi (PW-4) on telephone and thereafter other villagers also came to the spot. It transpired during investigation that on 18.12.2011, accused was sitting in the orchard of Chatro while his son accompanied deceased Harish Kumar to Village Sagluga. Accused on seeing his son accompanying Harish Kumar used provocative language and he was sent back to home. Thereafter, deceased Harish Kumar was walking towards Village Sagluga alone and when he reached the place Khill, accused followed and chased him. Accused caught hold of the deceased and threw him on the ground. He also pelted stones on him and ran away from the spot after killing him. Inquest papers were prepared. Recoveries were effected from the spot. The dead body was sent for post mortem examination. The post mortem examination was conducted by Dr. Akshay Minhas (PW-13). The accused was arrested on 23.12.2011. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 19 witnesses. The accused was also examined under Section 313 Cr.P.C. He pleaded that he was falsely implicated. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Y.P.S. Dhaulta, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. M.A.Khan, Addl. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 22.12.2012. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Bhagat Ram, father of the deceased deposed that he had commenced construction work in his house. On 18.12.2011 at around 9:00 AM, he deputed his deceased son Harish to bring nails from the shop in Village Sagluga. He had given him Rs. 60/- for the same. He kept on waiting his son till 5:00 PM, but he did not turn up. Then he rang up at Village Sagluga to Himmat Singh to ascertain whereabouts of his son. He told him that he had not seen his son. He had given him Rs. 60/- for the same. He kept on waiting his son till 5:00 PM, but he did not turn up. Then he rang up at Village Sagluga to Himmat Singh to ascertain whereabouts of his son. He told him that he had not seen his son. He went in search of his son at around 5:00 PM. He found dead body of his son lying in the fields of Baldev at Khill in village Fuldwas at a distance of 500-600 meters from his village. His son was lying on the ground with heavy stone weighing about 30 kgs. on his belly. His face was smeared with blood. He raised screams. Himmat Singh who was on the way after doing his work came to the spot. Himmat Singh rang up his family members and also informed about the recovery of dead body of his son to Narli Devi on phone. Narli Devi asked her father on phone to inform the police. The police arrived at the spot late in the evening at around 7:30 PM. His statement was recorded by the police. The police took into possession stone kept on the belly of his deceased son vide memo Ext. PW-1/B. Accused was over possessive of his sons. He did not allow them to mix up. The son of accused had accompanied his deceased son to bring nails from village Sagluga. In his cross-examination, he deposed that he had disclosed to the police that accused was over jealous about his children and did not allow them to mix up. Confronted with the statement Ext. PW-1/A and statement mark “B”, where it is not so recorded. He disclosed before the police that the son of accused had accompanied his son to bring nails from village Sagluga. Confronted with the statement Ext. PW-1/A and mark “B” where it is not so recorded. He came to know after 3-4 days that accused had murdered his son. He rang up Himmat Singh to know whereabouts of his son at about 4:30 PM and at once Himmat Singh had disclosed him on phone that he had not seen his son at village Sagluga. He did not have personal knowledge as to how his son was killed but he came to know from Harish son of Tokha Ram. He rang up Himmat Singh to know whereabouts of his son at about 4:30 PM and at once Himmat Singh had disclosed him on phone that he had not seen his son at village Sagluga. He did not have personal knowledge as to how his son was killed but he came to know from Harish son of Tokha Ram. Harish had not disclosed to him that accused had murdered his son but to the police in his presence. He disclosed this fact to the police after 4-5 days. Harish son of Tokha Ram is known to him since his childhood. Harish was well aware of his residence in village Kandwas. He could not say whether Harish son of Tokha also knew about his deceased son. His statement was recorded on the spot. In his cross-examination, he categorically admitted that his deceased son and the son of accused after school hours used to play together in the village. 7. PW-2 Smt. Kundnu is the grandmother of deceased Harish. She left home to graze cattle in the nearby fields. She returned in the evening around 5:00 PM. Her son disclosed to her that Harish had not returned back. Bhagat Ram went in search of his deceased son. She received call from Himmat Singh and heard screams of his son on phone. 8. PW-3 Himmat Singh deposed that on 18.12.2011, he was in village Sugloga. At 4:30 PM, he received phone call from his sister-in-law (Bhabhi), namely, Narli Devi who asked him whether deceased Harish son of Bhagat Ram had visited any of the shops in village Sugloga to purchase nails as he had not returned to village Kandwas. He visited the shop of Depot Holder and inquired whether any person from village Kandwas had visited to purchase nails. He rang up Narli Devi and told her that Harish had not visited village Sugloga to purchase nails. He left for his village at around 5:00 PM. On the way he heard screams of Bhagat Ram in the fields near village Fuldwas. He heard Bhagat Ram calling the villagers by saying that his son had been killed by someone. He had seen the dead body of Harish lying in the fields smeared with blood with big stone lying on his belly. He again rang up Narli Devi and informed that the dead body of Harish was seen lying in the fields near Fuldwas. He had seen the dead body of Harish lying in the fields smeared with blood with big stone lying on his belly. He again rang up Narli Devi and informed that the dead body of Harish was seen lying in the fields near Fuldwas. In his cross-examination, he did not recall whether while giving statement before the police, he had disclosed that he had inquired about the visit of Harish on the shop of Depot Holder. Confronted with the statement mark “H”, where it is not so recorded. He did not recall whether while giving statement before the police, he had stated that on reaching the spot Bhagat Ram was seen calling villagers from village Fuldwas. Confronted with statement mark “H” where it is not so recorded. He did not know whether he had stated before the police that again he visited the spot. Confronted with the statement mark “H”, where it is not so recorded. He had not disclosed phone number to the police from which he called Narli Devi from village Sugloga. He admitted that village Fuldwas was at a distance of 150 meters from the spot where the dead body of Harish was seen lying. 9. PW-4 Narli Devi deposed that on 18.12.2011 Bhagat Ram father of deceased came to her around 4:30 PM and told her that he had sent his son to purchase nails from village Sugloga. He asked her to inquire from Himmat Singh who used to work as mason in village Sugloga, whether his son Harish had visited Sugloga to purchase nails. She called her brother-in-law Himmat Singh on phone to inquire about Harish. He called her after a while that Harish had not visited Sugloga to purchase nails. Again, she received call from Himmat Singh around 6:15 PM that Harish had been killed. She informed the villagers accordingly. 10. PW-5 Madho Ram deposed that Narli Devi is his daughter and is married in village Kandwas. On 18.12.2011 around 6:00 PM, he received phone call from his daughter Narli Devi to the effect that Harish had been murdered by someone in the fields and she asked him to inform the police. 11. PW-6 Smt. Devki is the mother of deceased Harish. According to her, son of accused also accompanied her son Harish while on way to Sugloga to purchase nails. Accused called back his son on seeing him accompanying Harish. 11. PW-6 Smt. Devki is the mother of deceased Harish. According to her, son of accused also accompanied her son Harish while on way to Sugloga to purchase nails. Accused called back his son on seeing him accompanying Harish. Her son did not return back till late evening. Her husband went in search of his son towards village Sugloga. The dead body of her son was seen lying in the fields at a place known as Khill in village Sugalwas. She came to know after investigation that accused has murdered her son. In her cross-examination, she admitted that her son had good equation with the son of accused but the accused did not like this proximity. 12. PW-8 Harish son of Tokha Ram is the most material witness. According to him, on 18.12.2011, at around 9:30 AM, he was in his fields. He had taken cow dung from his house in village Fuldwas and thereafter he broke stones. He had seen one boy coming from village Kandwas proceeding towards village Sugloga. In the meanwhile, he saw accused calling that boy while coming from village Kandwas. Accused called that boy and asked him to stop. Accused bodily lifted the boy and brutally threw him down on the rocky surface. Accused also hurled stones on the boy. Thereafter, he made him lie on the ground and kept huge stone on his belly. He abused the accused of his inhuman conduct. He was at a distance of around 100 meters and was standing on higher altitude from the place where the accused was seen beating the boy. He reached the spot and by that time, accused had left the spot. When he reached the spot Harish had already expired. He heard accused saying to the victim that as to why he used to take his son alongwith him. Accused left for his home and he also went to his home. He went to his home quietly out of fear and did not share this incident with anyone. On 22.12.2011, when the police came in connection with investigation, the villagers of Fuldwas and nearby villages Kandwas and Padhar, he disclosed the incident to the police on their asking. He had shown the place to the police where accused had beaten and killed the deceased. On 22.12.2011, when the police came in connection with investigation, the villagers of Fuldwas and nearby villages Kandwas and Padhar, he disclosed the incident to the police on their asking. He had shown the place to the police where accused had beaten and killed the deceased. Accused had beaten and killed Harish since he did not like his son to be accompanied by anyone either to School or elsewhere. The blood stained half sleeves shirt was discovered by the accused from the bushes. The shirt is Ext. P-18. The pants were also taken into possession on 25.12.2011 vide Ext. PW-8/B. The pants are Ext. P-20. The accused had made disclosure statement vide Ext. PW-8/F. He identified blood stained stones Ext. P-4, P-6 and P-8. He also identified stone Ext. P-2. In his cross-examination, he deposed that he had six members in his family. He did not share this fact with his family members. He admitted that there are 20-25 houses in village Fuldwas where 100-150 people reside. On 18.12.2011, he reached home within 10 minutes. After reaching home, he confined himself and did not go out due to fear in his mind. On 19.12.2011, he confined himself at home since he was under shock. On 20.12.2011 and 21.12.2011, he continued to confine at home being under shock. He had disclosed to the police while giving statement that after witnessing occurrence on 18.12.2001, he continued to confine himself at home for next 3-4 days since he was under shock. Confronted with the statement mark “H-1” where it is not so recorded. He also admitted that Pradhan and Up- Pradhan as well as members of local Gram Panchayat reside in the area. No one came to meet him during the span of those 3-4 days. He admitted that he was moving in and around his house and in the neighborhood as well. Accused Suli Ram was known to him since long but deceased Harish was not known to him. Bhagat Ram was also known to him since his childhood. He raised hue and cry after seeing the accused lifting and throwing deceased Harish on rocky surface, however, no one turned up. He also admitted that the place where accused was beaten and killed was nearer to village Fuldwas. He also admitted that one call was enough to attract attention of the villagers. 13. He raised hue and cry after seeing the accused lifting and throwing deceased Harish on rocky surface, however, no one turned up. He also admitted that the place where accused was beaten and killed was nearer to village Fuldwas. He also admitted that one call was enough to attract attention of the villagers. 13. PW-9 Kiran Kumar was minor at the time of recording his statement. He was student of 9th standard at Govt. Sr. Secondary School, Tissa. According to him, on 18.12.2011, he had gone to Kalkundi Nag temple, which is at a distance of 2 kms.,- from his village Padhar. He had gone there to offer milk on the advice of his parents. During offering, one aunt, namely, Veena from his village met him and gave him one bag of green vegetable to take the same to home. After offering, he walked downwards to the place known as Khill between village Kandwas and Fuldwas. He reached there around 9:45 AM. While on the way to home through the place known as Khill, he had seen one person giving beatings to one boy. He did not recognize the person who was beating. He later on came to know the name of the person who was giving beatings to the boy as Suli Ram and the name of the boy as Harish. The person who was beating had a long beard and was wearing black clothes and supporting long hair. He was wearing clothes like Ext. P-18 and P-20. He had seen one more person sitting above at a distance of 50 meters and later on he came to know that his name was Harish. In his cross-examination, he deposed that when he reached home, he met his father, two-three persons-Surinder Kumar and his wife Premi Devi. He disclosed to them about the brawl witnessed by him on the way while coming from the temple. He stood for about 5-6 minutes to witness the brawl. He had not seen any person visiting the spot to rescue anyone. He had not seen any other person in and around the place of occurrence but only Harish (PW- 8) who was sitting at a distance of 50 meters. He admitted that in villages Kandwas, Fuldwas and Sugloga, generally the inhabitants of these villages wear black and shabby clothes. 14. Pw-13 Dr. Akshay Minhas, has conducted the post mortem examination and issued report Ext. He admitted that in villages Kandwas, Fuldwas and Sugloga, generally the inhabitants of these villages wear black and shabby clothes. 14. Pw-13 Dr. Akshay Minhas, has conducted the post mortem examination and issued report Ext. PW-13/B. According to his opinion, the deceased had sustained internal abdominal injury leading to rupture of spleen which led to hemorrhage and head injury leading to fracture of bone and blood loss. It caused acute hemodynamic shock, which finally led to death. 15. PW-19 Insp. Jagdish Chand has carried out the investigation in the matter. He visited the spot. Inquest papers were filled in. He recorded the statement of Bhagat Ram vide Ext. PW-1/A. He identified stone Ext. P-2. Three blood stained stones lying in and around the dead body were taken into possession, which are Ext. P-4, P-6 and P-8. Sample soil was also lifted. On 25.12.2011, when accused was arrested, he made statement Ext. PW-1/F in presence of witnesses Madho Ram and Harish son of Tokha to the effect that he could get the shirt discovered worn by him at the time of occurrence. The accused was taken to the place of occurrence where shirt Ext. P-18 hidden in the bushes was recovered at his instance. Pants Ext. P-20 were also taken into possession. The case property was sent to RFSL Dharamshala on 26.12.2011 and 28.12.2012. 16. The case of the prosecution, precisely, is that PW-1 Bhagat Ram had sent his son to bring nails from village Sagluga. His son in the company of son of accused was going towards village Sagluga. The accused did not like his son going with deceased. The accused hurled stones on the deceased. He also placed 20 kg stone on the belly of deceased Harish. PW-8 Harish son of Tokha Ram came to the spot. PW-9 Kiran Kumar had also seen the incident. The post mortem of the dead body was got conducted. 17. The motive attributed to the accused for killing Harish was that he did not like his son with the deceased. According to the prosecution, the accused was very possessive about his sons. However, in Ext. PW-1/A, it is not mentioned that the accused did not like his son with the deceased. In his cross-examination, PW-1 Bhagat Ram deposed that he had disclosed before the police that the son of accused had accompanied his son to bring nails from village Sagluga. According to the prosecution, the accused was very possessive about his sons. However, in Ext. PW-1/A, it is not mentioned that the accused did not like his son with the deceased. In his cross-examination, PW-1 Bhagat Ram deposed that he had disclosed before the police that the son of accused had accompanied his son to bring nails from village Sagluga. He was confronted with the statement Ext. PW-1/A and statement mark “B”, where it is not so recorded. In his cross-examination, he also deposed that he had disclosed that accused was over jealous about his children and did not allow them to mix up. He was confronted with the statement Ext. PW-1/A and statement mark “B”, where it is not so recorded. 18. PW-8 Harish son of Tokha Ram testified that he had seen the accused administering beatings to deceased from a distance of 100 meters. He had heard accused saying to the deceased as to why he used to take his son alongwith him. The incident has taken place on 18.12.2011. PW-8 Harish son of Tokha Ram has not disclosed this incident to any person, though Pradhan, Up-Pradhan and Members of the Panchayat were also residing nearby. The explanation given by PW-8 Harish son of Tokha Ram is that he confined himself in the house from 18.12.2011 to 22.12.2011. However, he has admitted that he was moving around in his house and also in the neighborhood. The normal human conduct would have been to inform the people if he had seen the accused giving beatings to the deceased. He has also admitted that he was acquainted with the faces of accused and Bhagat Ram, the father of deceased Harish. If he had seen the incident, he would have visited the house of Bhagat Ram, father of deceased to inform him about the incident. In his cross-examination, he deposed that he had raised screams when he saw accused giving beatings to deceased. He has also admitted that the place where the accused had beaten and killed deceased was nearer to village Fuldwas. He also admitted that the screams on the spot could be heard in the village Fuldwas. He also admitted that one call was enough to attract the attention of the villagers. The conduct of PW-8 Harish son of Tokha Ram is abnormal. He also admitted that the screams on the spot could be heard in the village Fuldwas. He also admitted that one call was enough to attract the attention of the villagers. The conduct of PW-8 Harish son of Tokha Ram is abnormal. Firstly, he has not informed the villagers or family members of the deceased and if according to him he had shouted and raised screams, it would definitely have invited the attention of the villagers of village Fuldwas. 19. Their lordships of the Hon’ble Supreme Court in the case of Maruti Rama Naik vrs. State of Maharashtra, reported in (2003) 10 SCC 670 , have held that when PW-4 (a close relative of deceased K) saw the assault on K, but neither tried to shift K to a hospital who was alive by then nor informed anybody about the incident, and went to his factory and even after coming back from factory, he did not inform anyone about the same, his testimony was not relied upon. Their lordships have held as follows: “7. We will now consider whether the evidence of PW-4 in any manner corroborates the evidence of PW-3 or for that matter the said evidence of PW-4 is acceptable at all. PW-4 has admitted that he is a close relative of deceased Krishna Mahada Naik. While he had noticed the incident of the attack on the deceased Krishna Mahada Naik, he has not spoken in any manner about the subsequent attack which includes the attack on PW-3. According to this witness, at the relevant time, he was going to the bus-stand to board a bus to reach his factory where he was working when he saw the assault on the deceased Krishna Mahada Naik by the assailants including the appellants. Having noticed the incident, he did not go to any one of his relatives' house to inform about the attack in question. He knew at that point of time that Krishna Mahada Naik was injured and still alive, still he did not make any effort whatsoever to get any help to shift the injured to a hospital. Having noticed the incident, he did not go to any one of his relatives' house to inform about the attack in question. He knew at that point of time that Krishna Mahada Naik was injured and still alive, still he did not make any effort whatsoever to get any help to shift the injured to a hospital. According to this witness, even after seeing Krishna Mahada Naik lying injured in a critical condition, he without informing anybody about the incident, went to the busstand, took a bus and went to his factory and even at that point of time, he had sufficient opportunity to inform the other people about the incident or for that matter, even the Police which he did not do. It is interesting to note from the evidence of this witness that even though he had an opportunity of approaching the police, he did go to them because he did not know whom he had to inform about the incident in the Police Station. The witness further states that he went to the factory, worked for a while, took leave from the factory and went back home. Even after reaching home, he did not bother to find out from anybody there about the fate of the victims nor did he inform anybody about he having witnessed the incident. It is only at about 6 p.m. when PW-21 recorded the statement for the first time, he came out with the fact of having witnessed the incident. It is rather surprising as to how and in what manner, PW-21 came to know that PW-4 was a witness to the incident. The prosecution has also failed to explain the delay in recording the statement of this witness, therefore, bearing in mind the conduct of PW-4 in not informing anybody about his having witnessed the incident and the delay in recording his statement makes us hesitant to place any reliance on his evidence. The prosecution has also failed to explain the delay in recording the statement of this witness, therefore, bearing in mind the conduct of PW-4 in not informing anybody about his having witnessed the incident and the delay in recording his statement makes us hesitant to place any reliance on his evidence. The only other piece of evidence relied by the prosecution to support its case against these two appellants is that of recovery which even according to prosecution, was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people and also the fact that recovery was made almost 9 days after the incident in question, in our opinion, this piece of evidence also would not at all be sufficient to base a conviction of these appellants without further acceptable corroboration. Therefore, we are of the opinion that these appeals must succeed. The conviction and sentence imposed on the appellants are set aside and the appeals are allowed.” 20. In the instant case also, PW-8 Harish son of Tokha Ram has not disclosed the incident from 18.12.2011 to 22.12.2011 to any person. Thus, it would be unsafe to sustain the conviction of the accused on his testimony. Similarly, PW-9 Kiran Kumar, though stated to be eye witness of the incident but has not seen the accused hitting the deceased. He tried to identify him only with stones Ext. P-18 and P-20 and half sleeve shirt and pants. According to PW-9 Kiran Kumar, the person who was beating the deceased had a long beard and long hair. He was wearing black clothes. In his cross-examination, he admitted that in villages Kandwas, Fuldwas and Sugloga, generally the inhabitants of these villages wear black and shabby clothes. The conduct of PW-9 Kiran Kumar was also abnormal. He also met his father and 2-3 persons Surinder Kumar and his wife Premi Devi. He disclosed to them about the brawl on his way while coming from the temple. If he had seen the incident and narrated it to his father about the brawl, they would have definitely informed the father of the deceased who was resident of nearby village. 21. The deceased has died due to rupture of spleen which led to hemorrhage and head injury leading to fracture of bone and blood loss. If he had seen the incident and narrated it to his father about the brawl, they would have definitely informed the father of the deceased who was resident of nearby village. 21. The deceased has died due to rupture of spleen which led to hemorrhage and head injury leading to fracture of bone and blood loss. The motive attributed to the accused for killing the deceased is not believable. Why a man would kill a child if he was seen in the company of his son? It has come on record that deceased and son of the accused were good friends and used to pay together. The statement of PW-8 Harish son of Tokha Ram does not inspire confidence. It is reiterated that it is not believable why he would have kept quiet from 18.12.2011 to 22.12.2011. PW-9 Kiran Kumar has not recognized the accused on the spot. According to him, the accused was wearing clothes like Ext. P-18 and P-20. PW-8 Harish son of Tokha Ram knew the father of the deceased and despite that he has not informed him about the incident. PW-1 Bhagat Ram has also admitted that PW-8 Harish son of Tokha Ram knew his residence. There is no reference of the motive in the statement Ext. PW-1/A. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 22. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 22.12.2012, rendered by the learned Addl. Sessions Judge (FTC), Chamba, H.P., in Sessions trial No. 5/12, under Section 302 IPC is set aside. The accused is acquitted of the charge framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 23. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.