JUDGMENT Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 24/25.7.2012, rendered by the learned Sessions Judge, Kinnaur at Rampur, H.P. in Sessions Trial No. 01 of 2011, whereby the appellant-accused Bishan Singh (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 302, 201 and 34 IPC alongwith other co-accused namely, Geeta Ram and Bir Bahadur for offences punishable under Section 201 read with Section 34 IPC, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- under Section 302 IPC and in default to further undergo simple imprisonment for one year. He was further sentenced to undergo rigorous imprisonment for four years under Section 201 IPC read with section 34 IPC and to pay a fine of Rs. 3000/-and in default to undergo simple imprisonment for six months. Accused Geeta Ram and Bir Bahadur were sentenced to undergo rigorous imprisonment for four years each and to pay fine of Rs. 3000/- each under Section 201/34 IPC and in default to further undergo simple imprisonment for six months each. 2. The case of the prosecution, in a nut shell, is that Maghu Ram (hereinafter referred to as the deceased), cousin of the complainant had taken the construction work of the house of one Sh. Ganga Dev (PW4), in village Urni, on contract basis. The deceased had engaged the services of Bishan Singh as mason and other Gorkhas. On 11.8.2010, Sh. Ganga Dev, telephonically informed Smt. Hira Devi, wife of the deceased that Maghu Ram had not reached his house despite the fact that he had told his mason and labourers that he was coming to his house. They started searching him but to no avail. They searched him at Urni where he had taken the work on contract. Even there, neither the deceased was found nor his labourers. Thus, on 26.8.2010, Sh. Shyam Dass, brother of the deceased lodged a missing report at Police Post Tapri. Thereafter, FIR was lodged on 2.9.2010. During investigation, accused Bishan Dass made a disclosure statement under Section 27 of the Evidence Act that he had concealed the dead body of the deceased in a cave and that in this regard he alongwith the co-accused had knowledge. He also gave Nishandehi of the Dogri of one Sh. Thereafter, FIR was lodged on 2.9.2010. During investigation, accused Bishan Dass made a disclosure statement under Section 27 of the Evidence Act that he had concealed the dead body of the deceased in a cave and that in this regard he alongwith the co-accused had knowledge. He also gave Nishandehi of the Dogri of one Sh. Anand Singh, situated at village GTalgale where on 11.8.2010, he had allegedly killed the deceased. The site plan was prepared. Thereafter, he took the police to Makhim jungle from where, he got recovered the dead body, concealed in a cave behind bushes. The dead body was identified by Sh. Shiv Ram (complainant) and one Sh. Rattan Dass from the clothes. The photographs of the place of recovery were taken. Inquest papers were prepared. The dead body was subjected to post mortem examination. The dead body was sent to PHC, Urni and from there it was referred to IGMC, Shimla. On 5.9.2010, accused Bishan Dass also made a disclosure statement under Section 27 of the Evidence Act regarding a Danda which he had kept behind his Dera at place Galgale and also to get the same recovered. On the basis of the statement given Nishandehi of the place situated on the backside of the cowshed of Anand Singh and got recovered a Danda. The sketch map was prepared on the spot before sealing it. Fard Nishandehi and site plan of recovery were prepared. Accused Geeta Ram also made a disclosure statement under Section 27 of the Evidence Act that he could get recovered the bali/wooden plank, used in lifting the dead body to the forest which was kept concealed on the lower side of the cowshed of Sh. Anand Singh, of which he alongwith the co-accused had the knowledge. Upon Nishandehi of the place, bali/wooden plank was got recovered. Fard Nishandehi and site plan of recovery were prepared. Bali was taken into possession. Similarly, accused Bir Bahadur made a disclosure statement under Section 27 of the Evidence Act regarding a rope which had been used to tie the dead body with the Bali and that he could get the same recovered from the Dogri of the house of Sh. Jitender in which accused Bir Bahadur was living. he got recovered the rope and in this regard Fard Nishandehi and site plan of recovery were prepared. Jitender in which accused Bir Bahadur was living. he got recovered the rope and in this regard Fard Nishandehi and site plan of recovery were prepared. The blood samplesof the parents of the deceased were also taken for DNA profiling and sent to FSL, Junga alongwith the teeth and bones, preserved during the post mortem examination of the deceased. On completion of the investigation, challan was put up after completing all the codal formalities. Accused Bishan Dass was tried for offences punishable under Section 302, 201 and 34 IPC whereas accused Geeta Ram and Bir Bahadur were tried for offences punishable under Sections 201/34 IPC. 3. The prosecution, in order to prove its case, has examined as many as 13 witnesses. The accused were also examined under Section 313 Cr.P.C. They have denied the prosecution version and pleaded innocence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Bhupinder Ahuja, 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, learned Addl. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 24/25.7.2012. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 Shiv Ram, testified that on 11.8.2010, Ganga Dev had informed Hira Devi wife of Maghu Ram deceased that the deceased has not been coming at the site of construction work. Hira Devi told Ganga Dev that he has not come home. Thereafter, they searched Maghu Ram in the relations and other places but his whereabouts were not known. On 26.8.2010, Shyam Dass, brother of the deceased lodged missing report at Police Post Tapri. On 2.9.2010, they came to know that accused Bishan Dass along with other co-accused had killed him. His statement Ext. PW-1/A was recorded by the police. The accused were arrested. The dead body of the deceased was got recovered by the accused from Markami jungle. He identified the dead body. In his cross-examination, he admitted that ASI Ganga Dev had told telephonically to his sister-in-law that Maghu Ram has performed second marriage and has gone to Kinnaur. 7. PW-2 Smt. Hira Devi, is the wife of the deceased. The dead body of the deceased was got recovered by the accused from Markami jungle. He identified the dead body. In his cross-examination, he admitted that ASI Ganga Dev had told telephonically to his sister-in-law that Maghu Ram has performed second marriage and has gone to Kinnaur. 7. PW-2 Smt. Hira Devi, is the wife of the deceased. She testified that on 11.9.2010, Ganga Dev informed her that her husband was not attending the construction work of his house. She told him that he has not visited the house. Thereafter, she made a telephonic call to Bishan Singh accused and he told her that Maghu Ram has performed second marriage and has left the place. She searched her husband with her relations and other places but he was not found anywhere. On 26.8.2010, Shyam Dass lodged missing report at P.P. Tapri. 8. PW-3 Surender Singh, deposed that the accused Bishan Singh made disclosure statement under Section 27 of the Indian Evidence Act that he has killed Sh. Maghu Ram and has concealed his body in Makhim forest about which only he, Geeta Ram and Bir bahadur have the knowledge. The statement to this effect was recorded vide Ext. PW-3/A. He signed the same along with Rattan Dass and accused Bishan Singh appended his thumb impression on the same. Thereafter, accused Bishan Singh led the police party to the spot where he had killed Maghu Ram and concealed his dead body for three days in the cow shed. In this regard memo Ext. PW-3/B was prepared. Accused Bishan Singh told that on 14.8.2010, at mid night, he alongwith co-accused Bir Bahadur and Geta Ram had taken the dead body of Maghu Ram from the cow shed and had concealed the same in the cave in Mukami forest. Thereafter, accused Bishan Singh led the police party to the place where he had concealed the dead body of Maghu Ram in the cave and get the same recovered which was identified by Shiv Ram, the relative of deceased. Recovery memo Ext. PW-1/B was prepared. In his cross-examination, he deposed that he went to the Police Post Tapri. 5-6 persons were already present there. The statement of accused Bishan Singh under section 27 of the Evidence Act was recorded by the SHO under the supervision of the Superintendent of Police. 9. Recovery memo Ext. PW-1/B was prepared. In his cross-examination, he deposed that he went to the Police Post Tapri. 5-6 persons were already present there. The statement of accused Bishan Singh under section 27 of the Evidence Act was recorded by the SHO under the supervision of the Superintendent of Police. 9. PW-4 Ganga Dev, deposed that he had given contract of construction work of his house to Maghu Ram. In April, 2010, he started the construction work of his Dogri/house. Accused Bishan Singh was working as mason and co-accused Geeta Ram and Bir Bahadur as labourers. In the month of August, 2010, when deceased Maghu Ram did not attend the construction work, he informed his wife that Maghu Ram was not attending the work and asked her as to whether he was at home or not. The accused persons were arrested on 5.9.2010. He was associated in the investigation by the police. During investigation, accused Bishan Singh made disclosure statement that he has killed Maghu Ram with a danda and has concealed the danda about which only he has the knowledge and he can get recovered the same. Statement to this effect was recorded vide Ext. PW-4/A. Accused led the police party to the place where he had kept concealed the danda at place Galgale. He got recovered danda from behind the Dogari of Anand Singh. Sketch was prepared vide memo Ext. PW-4/B. The danda was taken into possession vide memo Ext. PW-4/C. It was put in parcel of cloth and sealed with seal “K”. Accused Geeta Ram also made disclosure statement that the plank used for lifting the dead body of deceased by him and Bir Bahadur and Bishan Singh was concealed by him and only he has the knowledge of the same and can get recovered the same. Memo Ext. PW-4/D was prepared to this effect. Thereafter, accused Geeta Ram led the police party to the place where he had concealed the plank/bali and got recovered the same from fencing. It was taken into possession vide memo Ext. PW-4/E. Thereafter, accused Bir Bahadur also made disclosure statement that he has concealed the rope used for tying the dead body in the house of Jitender. The statement was recorded vide memo Ext. PW-4/F. Accused Bir Bahadur led the police party to the place where he had concealed the rope. It was got recovered. Danda Ext. P-2, Wood Ext. PW-4/E. Thereafter, accused Bir Bahadur also made disclosure statement that he has concealed the rope used for tying the dead body in the house of Jitender. The statement was recorded vide memo Ext. PW-4/F. Accused Bir Bahadur led the police party to the place where he had concealed the rope. It was got recovered. Danda Ext. P-2, Wood Ext. P-3, rope Ext. P-4 were produced in the Court during the recording of the statement of PW-4 Ganga Dev. He admitted in his cross-examination that he was receiving complaints that Maghu Ram used to consume liquor. Maghu Ram used to disclose that he has no issue and wanted to perform second marriage. 10. PW-5 Yash Pal, deposed that on 5.9.2010, SHO got deposited with him the case property in case No. 71/2010 dated 2.9.2010. He made the necessary entries in the malkhana register. On 10.9.2010, HC Sandeep Kumar had deposited the long bone of deceased Maghu Ram along with the clothes of deceased which he brought from IGMC, Shimla. The case property was also entered in the malkhana register on 23.9.2010. The SHO PS, deposited two envelopes and the blood samples of deceased Maghu Ram for DNA profiling which were sealed with seal impression “T” and sent to FSL Junga through Const. Chander Mohan. 11. PW-6 Const. Chander Mohan testified that he has carried the case property to FSL, Junga on 23.9.2010. 12. PW-10 Dr. Piyush Kapila, has conducted the post mortem of the dead body and issued post mortem report Ext. PW-10/B. According to him, from the available remains, it was not possible to opine about the exact cause of death by keeping in view the ante mortem fracture of the head. The possibility of the head injury could not be ruled out. 13. PW-11 S.P. Ashok Kumar, testified that the accused were apprehended and brought before him for interrogation. While in custody, accused Bishan Singh made a disclosure statement vide Ext. PW-3/A. The accused Bishan Singh alongwith co-accused took them to the place where he alongwith the co-accused had killed the deceased Maghu Ram and also the place where his dead body was concealed. Spot map was prepared. Dead body was found hidden beneath stones in jungle Makhim. According to him, the house where the deceased was allegedly killed was three storeyed, including the ground floor. 14. PW-12 Dr. Spot map was prepared. Dead body was found hidden beneath stones in jungle Makhim. According to him, the house where the deceased was allegedly killed was three storeyed, including the ground floor. 14. PW-12 Dr. Rajeev Sandal, deposed that the body of the deceased maghu Ram was identified by Shiv Ram son of late Sh. Segi Ram. According to him, it was suspected case of murder. The dead body was found in the shape of Skelton. It was referred to the department of Forensic medicines, IGMC, Shimla for expert opinion. The post mortem report is Ext. PW-12/A. 15. PW-13 ASI Ishwar Singh, deposed that he has taken photographs of the spot and also prepared the CD of the spot from where the dead body was got recovered. In his cross-examination, he deposed that the house where the deceased was killed was double sotreyed. 16. PW-15 SI Tejender Kumar, has carried out the investigation. According to him, FIR Ext. PW-15/A was registered on the basis of Ext. PW-1/A. The dead body was recovered on the basis of the disclosure statement made by the accused Bishan Singh. He also got recovered the danda. Accused Geeta Ram also made the disclosure statement that he could get the bali recovered. He got the same recovered. Accused Bir Bahadur also made the disclosure statement that he had concealed the rope in the house of Tejender. He also got the same recovered. He prepared the spot map of the recovery of danda Ext. PW-15/B, Balli Ext. PW-15/C, rope Ext. PW-15/D. In his cross-examination, he deposed that he was present with the Superintendent of Police when statement under Section 27 of the Evidence Act were recorded. The statement of Bishan Singh was recorded by the Superintendent of Police himself. He visited the spot and there was three storeyed house on the spot. 17. The entire case of the prosecution is based on circumstantial evidence. The case of the prosecution, precisely, is that PW-4 Ganga Dev had engaged deceased Maghu Ram as contractor. He did not come for work. PW-4 Ganga Dev made inquiries from the wife of Maghu Ram. She told that he has not come home. Thereafter, the inquiries were made on 11.8.2010. The missing report was lodged by one Shyam Dass on 16.8.2010. Thereafter, the FIR was registered on 2.9.2010. 18. The FIR has to be registered promptly. He did not come for work. PW-4 Ganga Dev made inquiries from the wife of Maghu Ram. She told that he has not come home. Thereafter, the inquiries were made on 11.8.2010. The missing report was lodged by one Shyam Dass on 16.8.2010. Thereafter, the FIR was registered on 2.9.2010. 18. The FIR has to be registered promptly. It is also settled law that the registration of FIR belatedly would not affect the case of the prosecution if the delay has been satisfactorily explained. However, in this case, the deceased Maghu Ram has gone missing from 11.8.2010. The only statement made by PW-1 Shiv Ram and PW-2 Smt. Hira Devi is that inquiries were made from the relatives and other places. The missing report was lodged after about 15 days on 26.8.2010 by brother of deceased Sh. Shyam Dass. The FIR was registered on 2.9.2010. The delay in lodging the FIR has not been explained satisfactorily. 19. According to PW-10 Dr. Piyush Kapila and PW-12 Dr. Rajeev Sandal, the body was in the shape of Skelton. According to PW-10 Dr. Piyush Kapila, from the available remains, it was not possible to opine about the exact cause of death by keeping in view the ante mortem fracture of the head. According to him, the possibility of head injury could not be ruled out. The police has taken the blood samples of the parents of the deceased. These were sent for DNA profiling and the report is Ext. PX. Sh. Leba Ram and Smt. Lacchi Devi were found to be the biological parents of the deceased. 20. The prosecution has not attributed any motive to the accused Bishan Singh. Accused Bishan Singh was employed as mason. There is no material placed on the record by the prosecution that there was any dispute regarding payment or any such issue. Mr. M.A. Khan, learned Addl. Advocate General, for the State has placed strong reliance upon the disclosure statement made by accused Bishan Singh vide Ext. PW-3/A, whereby the accused has disclosed that he has concealed the dead body in the forest. PW-3 Surinder Singh has stated in his cross-examination that the statement of the accused Bishan Singh under Section 27 of the Indian Evidence Act was recorded by the SHO under the supervision of the Superintendent of Police. PW-3/A, whereby the accused has disclosed that he has concealed the dead body in the forest. PW-3 Surinder Singh has stated in his cross-examination that the statement of the accused Bishan Singh under Section 27 of the Indian Evidence Act was recorded by the SHO under the supervision of the Superintendent of Police. However, PW-15 SI Tejender Kumar stated that he was present with the Superintendent of Police when statement under Section 27 of the Evidence Act was recorded. The statement of accused Bishan Singh was recorded by the Superintendent of Police himself. There is variance in the statements of PW-3 Surender Singh and PW-15 SI Tejender Kumar, as to who has recorded the statement of accused Bishan Singh under Section 27 of the Evidence Act. 21. Mr. M.K.Khan, learned Addl. Advocate General for the State has then argued that on the basis of the disclosure statement made by the accused, the danda, bali and rope were recovered. Neither danda or bali nor rope were sent for FSL examination. These were produced at the time of recording the statement of PW-4 Ganga Dev, vide Ext. P-2, P-3 and P-4. There is entry in the malkhana register when these were deposited in the malkhana register, however, there is no entry when danda, bali and rope Ext. P-2, P-3 and P-4, respectively, were taken out for production before the Court. The case property is required to be deposited in the malkhana and the entry is required to be made when it is taken out and re-deposited in the malkhana. 22. According to PW-11 Ashok Kumar and PW-15 SI Tejender Kumar the house where deceased was allegedly killed was three storeyed. However, according to PW-13 ASI Ishwar Singh, who has taken photographs of the house, it was double storeyed only. There is variance in the statement of PW-11 Ashok Kumar, PW-13 ASI Ishwar Singh and PW-15 SI Tejender Kumar, whereby the house was double storeyed or three storeyed. It casts doubt whether it is the same house where the deceased was allegedly killed. Moreover, the statements under Section 27 of the Evidence Act made by the accused are dated 2.9.2010 but according to PW-4 Ganga Dev, the accused were arrested on 5.9.2010. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 23. Accordingly, the appeal is allowed. Moreover, the statements under Section 27 of the Evidence Act made by the accused are dated 2.9.2010 but according to PW-4 Ganga Dev, the accused were arrested on 5.9.2010. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 23. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 24/25.7.2012, rendered by the learned Sessions Judge, Kinnaur at Rampur, H.P., in Sessions trial No. 01 of 2011, under Sections 302/201/34 IPC is set aside. The accused is acquitted of the charge framed under Section 302/201/34 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. 24. 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.