JUDGMENT Per; B.S. Walia, J. 1. State is in appeal against order dated 27.04.2005 passed by the Learned 2nd Additional Sessions Judge, Jammu whereby the respondents were acquitted of the offences u/ss 307/395, 326/324, 148/149, 341/323 Ranbir Penal Code & Section 4/25, Indian Arms Act in FIR No. 26/1994, PS Ramgarh. 2. Prayer is for convicting the respondents by setting aside acquittal inter alia on the grounds of the same being against facts and law, of the Ld. trial court having mis appreciated and misconstrued the evidence as well as law respectively. 3. We have heard Ld. counsel for the parties and have gone over the record referred to by learned counsel. 4. Challan was filed u/s 173 Cr.P.C. before the Ld. Sub Judge, Judicial Magistrate, Jammu on September 2, 1994 who committed the case to the court of the Ld. Principal Sessions Judge, Jammu who forthwith transferred the case to the court of the Ld. 2nd Additional Sessions Judge Jammu for adjudication. 5. At the very outset it may be noticed that three out of the nine prosecution witnesses i.e. PW Darshan Kumar, PW Kewal Krishan & PW Raj Kumar did not support the prosecution version and were declared hostile. 6. Brief facts of the case as per deposition of PW Govind Parshad are that he a shopkeeper along with his brother Vijay Kumar were going home on May 1,1994, on scooter No. 4450/JK - 02B at about 7:30 PM after closing their shop when three/four persons came out of the bushes and stopped their scooter about half KM short of Village Sounkha whereupon accused Janak Raj gave Khukri blow to his brother Vijay Kumar and injured him while other accused beat him with lathies and blows and snatched Rs. 17,000/-from the dickey of the scooter, that on his raising a hue and cry, people assembled whereupon accused fled, injured Vijay Kumar was taken to Ramgarh Hospital where after FIR-EXPW-GP was got registered at Police Station Ramgarh. 7. As per PW Govind Parshad, accused Yashpal made disclosure statement - EXPW-GP1 on May 4,1994 of having taken money from the scooter which was distributed amongst accused besides lathi used in offence having been hidden behind the door and recovery of the same having been made vide memo EXPW-GP2, of accused Janak Raj having made disclosure statement leading to recovery of one Khukri and Rs. 1000/- vide memo EXPW-BR/2, of accused Yoginder Singh making disclosure statement of his having kept Rs. 880/- and spent Rs. 120/- out of said amount and of recovery of said amount having been made vide memo EXPW-GP3, likewise of Subhash Chander having made disclosure statement of his having kept one khukri and Rs. 602/- and recovery having been made of same. 8. 880/- and spent Rs. 120/- out of said amount and of recovery of said amount having been made vide memo EXPW-GP3, likewise of Subhash Chander having made disclosure statement of his having kept one khukri and Rs. 602/- and recovery having been made of same. 8. PW Govind Parshad further deposed that on the day of occurrence he closed his shop at 6.30 PM, was in his shop till 7 PM, that the shop was at a distance of 7 1/2 KM from the place of occurrence, report was lodged with the police and signed by him, that he had not named the accused in the report because he was not knowing the names at that time, police had arrested accused on 3rd May 1994, he came to know about accused persons on 4th May whereupon his statement was recorded by the police, of the same also having been recorded on the 2nd day of May, that on 1st May, two accused i.e. Janak Raj and Subhash were arrested while rest of accused were arrested by raiding their houses, the names of accused he came to know in the Police Station, he had not recognised the accused on the day of occurrence due to it being dark, he had recognised Janak Raj on the day of occurrence but had not given his name in the FIR but had told about his doubt on Janak Raj to the police, accused persons were not identified by him at the time of occurrence, police had told him about the name of Janak Raj but Janak Raj was not got identified through him by the police, identification of the accused was not got done from him by the police, in his statement u/s 161 Cr.P.C. he had not given the names of the accused, he had kept himself hidden a short distance from the place of occurrence, one Kalu, thereafter 3-4 persons had come to the place of occurrence but he did not know their names because it was dark, two accused had Khukries in his hands while rest were having lathies, he had seen Janak Raj giving Khukri blow but he could not state how may Khukri blows, accused beat injured with blows and lathies, he was not aware as to how much amount was there in the dickie of the scooter, but total was Rs. 17,000/-, entire amount was taken by the accused, that it was wrong to say that there was only Rs. 5-6000/- in the dickie and rest of the money was in the pocket of Vijay Kumar, disclosure statements were written on 4th May, accused Bodh Raj had accepted in the disclosure statement that accused had beat Vijay Kumar and snatched the money, but the said words were not in the disclosure statement, that at the time of disclosure statement he was there but as regards presence of others, he could not say, disclosure statement was written in Urdu while accused made the same in Dogri, he had accompanied the police at the time of seizure but could not say who else accompanied the police, from accused Bodh Raj Rs. 880/- was recovered, nothing was seized from him, from the occurrence Rs. 4300/-was recovered, he was not aware of the details, he could not state about the size of the lathies, police had obtained his signatures on 4-5 papers, he could not state as to who else had signed the same and he also could not tell as to which police official wrote on the papers, clothes worn by Vijay Kumar were given by Vijay Kumar to the police and the police had seized the same in the police station, Janak Raj was arrested by the police at 10 PM on the day of the occurrence, he had seen Janak Raj in the police station on May 2, that Rs. 1000/- was recovered from Janak Raj, Rs. 2500/- from Yash Pal, Rs. 880/- from Billa but he could not say as to how much amount was recovered from the rest of the accused, that Bhim Raj was his brother, injured was taken by the police to identify the accused but no papers were prepared regarding the identification parade, it was wrong to say that accused were arrested after four days. 9. 880/- from Billa but he could not say as to how much amount was recovered from the rest of the accused, that Bhim Raj was his brother, injured was taken by the police to identify the accused but no papers were prepared regarding the identification parade, it was wrong to say that accused were arrested after four days. 9. PW Vijay Kumar i.e. victim deposed that when he and his brother Govind Parshad closed their shop and were going home on 01.05.1994 on scooter No. 4550/JK02-B at about 7.30 PM, accused persons who were known to him and usually came to his residence, came out of the bushes, stopped their scooter whereupon respondent No. 1., i.e. Janak Raj inflicted blow on him with a weapon and injured him, he got 28 stitches, Govind Parshad his brother went away from the place of occurrence, Rs. 6000/- which was in the dickie was taken away by the accused, that many people working on nearby thresher came to the scene of occurrence upon hearing noise and if they had not come, he would have been killed, that he was semi conscious/unconscious when he was taken to the hospital where he remained for 4-5 days that the Khukri shown to him in Court was the same with which he was given blows. In cross examination he stated that he could not disclose the names of those who had come on hearing noise as he had become semi conscious/unconscious. Accused Janak Raj was known to him while other accused could be identified by him, khukri was of routine type, police had not seized the cash from the accused in his presence. 10. PW Bhim Raj (brother of victim as well as Govind Parshad) deposed that the injured and accused were known to him. On 01.05.1994, at about 8 PM one boy Kewal Krishan came and told him that some people were beating Vijay Kumar whereupon he went on a truck to the place of occurrence and found his brother Govind Parshad sitting there with his brother Vijay Kumar who was injured and not fully conscious. Accused, had beaten Vijay Kumar to steal Rs. On 01.05.1994, at about 8 PM one boy Kewal Krishan came and told him that some people were beating Vijay Kumar whereupon he went on a truck to the place of occurrence and found his brother Govind Parshad sitting there with his brother Vijay Kumar who was injured and not fully conscious. Accused, had beaten Vijay Kumar to steal Rs. 17,000/- from him and the said amount was recovered from the accused, then said some amount was recovered and rest of the amount was spent by the accused, Janak Raj had made disclosure statement-EXPW-BR stating therein that he had kept hidden one Khukri which he could show to the police and that recovery memo of Janak Raj, and Subhash Chander were EXPW-BR2 and EXPW-BR3. He further stated that Vijay Kumar was having Rs. 17,000/- in the dickey of the Scooter which was snatched by the accused persons. He stated that he had signed the disclosure statement as also the seizure memo but in his cross-examination he stated that he had not seen the occurrence with his own eyes but was informed of the same by Kewal Krishan. As regards disclosure statement of accused Subash, he stated that he had no knowledge about the since 8 years had elapsed. He further stated that he had not made a report before the police and that it was Govind Parshad who had given the names of accused persons in the FIR, that the accused were tied with locker in the room of the Munshi of the Thana and that the accused had made the disclosure statement before the Munshi, SHO who was conducting investigation was not there, that the contents of the disclosure statement were not read over to him by the police, that he had heard in Court on the date of his evidence that the police and Govind Parshad had gone to the house of the accused persons but he had not accompanied the police to the house of the accused persons, that seizure memo, disclosure statements and recovery memos were prepared in the police station and signatures were obtained on the same there only. 11. 11. PW Kundan Lal Sharma, Deputy Superintendent of Police (then SHO PS Ramgarh) stated that he carried out investigation, prepared site plan, recorded disclosure statement, prepared recovery memo, Sapuradanama, sketch of weapons of offence, obtained report of doctor and found the accused liable for the offences u/ss 307/395/326/324/341/323-RPC and 4/25 Indian Arms Act. In cross examination he admitted that names of accused were not given in FIR by complainant, complainant gave the name of the accused on 2nd May, 1994, in FIR it was mentioned that accused could be identified by him, there were no sharp stones at the place of incident, statement of accused was recorded on May 2, 1994, statement of the injured was recorded on 3rd May, 1994 in Hospital. Complainant had not accompanied him to the place of occurrence, that he had made his report on the basis of evidence recorded by him. 12. PW Dr Bodh Raj who examined injured Vijay Kumar and issued certificate EXPW-BR, stated in his cross examination that injury Nos. 1,2,4,5 were simple in nature while injury No. 1 & 5 were caused by a sharp weapon while injury No. 3 was grievous in nature caused by a sharp object and injury was also possible on account of fall from a scooter on a sharp edged stone. 13. PW Sham Singh, HC stated that on May 1,1994 he had accompanied the SHO who had seized Scooter No. 4550/JK 02B vide EXPW-KL.6 and the same was handed over to the Munshi at Bishnah Police Station. In cross-examination he stated that the Scooter was seized on identification by the complainant but complainant was not present at the time of seizure of the Scooter. 14. We have heard learned counsel for the parties and considered the submissions made as also the record referred to. There are a number of glaring discrepancies in the prosecution story. While PW Vijay Kumar stated that the accused fled on the Scooter in question, as per investigation report scooter was lying at the place of occurrence and was seized by the police. Secondly while the IO stated that the complainant was not knowing the accused persons and had said that he could identify them and identification parade had been conducted, there was no record in respect thereto. Moreover, in cross examination IO admitted that he had not conducted identification parade of accused. Secondly while the IO stated that the complainant was not knowing the accused persons and had said that he could identify them and identification parade had been conducted, there was no record in respect thereto. Moreover, in cross examination IO admitted that he had not conducted identification parade of accused. Independent witnesses are on record stating that they had no knowledge of the incident leading to their being declared hostile i.e. Kewal Krishan, Darshan Kumar. PW Raj Kumar another independent witness deposed that no disclosure statement was made in his presence and that the disclosure statements and seizure memos which bore his signatures were wrong. He too was declared hostile by the prosecution. They did not support the prosecution version even in cross examination. Statement of PW's that the amount in the dickie i.e. Rs. 17,000/- was snatched by the accused is contradictory to the statement of PW Vijay Kumar who was having the money and he stated that Rs. 6000/- was in the Scooter dickey while the balance Rs. 11,000/- was in his pocket. However, said witness never made any statement qua snatching of Rs. 11,000/- by the accused. All three key figures of the incident namely Vijay Kumar injured and his brothers Govind Parshad and Bhim Raj have given contradictory versions regarding the incident. As per PW Vijay Kumar, names of accused were disclosed by his brother PW Govind Parshad to the police but the same is contrary to the stand of Govind Parshad. PW Vijay Kumar deposed that he could not state as to whether the khukri was in the hands of Janak Raj or some other accused, that amount was not seized by the police in his presence, that clothes which were seized by the police had not been seen by him in court, that the khukri's were not seized in his presence but were shown to him by the police in the hospital, he was not aware as to after how many days accused were arrested but accused were brought in a truck and shown to him, seized property had not been seen by him in court, that at the time of occurrence it was dark, therefore he could not say as to which of the accused had injured him. PW Govind Parshad on the one had stated that he had recognised Janak Raj on the day of occurrence but on the other hand stated that he had not recognised the accused on day of occurrence due to it being dark. He also stated that he had not given the name of accused in the FIR but had related to the police that he was having doubt on Janak Raj. He further deposed that police had told him about the name of Janak Raj but he was not got identified by police through him and that while police had arrested the accused on 3rd May 1994, he had come to know about the accused persons on 4th May, but that on 1st May two accused i.e. Janak Raj and Subhash were arrested and rest of accused were arrested by raiding their houses and he came to know their names in the Police Station. It is not understandable as to how accused Janak Raj accused was arrested by Police on the same night within about one and a half hour of the incident in view of non recognition of accused by PW Govind Parshad due to darkness, resultantly non giving of names of accused in the FIR nor identification of accused Janak Raj having been got done from PW Govind Parshad. PW Govind Parshad also deposed that he was not aware as to how much amount was in the dickie but total was Rs. 17,000/- and the entire amount was taken by the accused and it was wrong to say that in the dickie there was only Rs. 5-6000/- and rest of the money was in the pocket of Vijay Kumar. However the aforesaid statement is contrary to the statement of PW Vijay Kumar who stated that there was only Rs. 6000/- in the dickie of the Scooter and the same was snatched by the accused while the rest was in his pocket. It was further highlighted that PW Vijay Kumar had not stated that the amount of Rs. 11,000/- which was in his pocket was also snatched by the accused. He further stated that accused Bodh Raj had accepted in the disclosure statement that accused had beaten Vijay Kumar and snatched the money, but there were no words to that effect in the disclosure statement. 11,000/- which was in his pocket was also snatched by the accused. He further stated that accused Bodh Raj had accepted in the disclosure statement that accused had beaten Vijay Kumar and snatched the money, but there were no words to that effect in the disclosure statement. PW Bhim Raj i.e. brother of the victim as well as Govind Parshad stated that names of accused were given to the police by PW Govind Parshad. On the other hand, PW Govind Parshad categorically stated that he had not disclosed the names of accused persons or their parentage to the police, that he could not identify the accused persons at the time of occurrence on account of it being dark, that he did not know the names of accused and their parents, although identification parade was stated to have been conducted by the police, but the same was not conducted in his presence. PW Bhim Singh, although not an eyewitness stated that Vijay Kumar had Rs. 17,000 in the dickey of the Scooter which was snatched by the accused but the same is contrary to the statement of PW Vijay Kumar who categorically stated that he had only Rs. 60007- in the scooter dickie while the rest i.e. Rs. 11,000/- was in his pocket. Said PW Vijay Kumar did not make any statement with regard to snatching of Rs. 11,000/- PW Bhim Singh further stated that the accused were tied to the locker in the room of the Munshi of the Thana and that they had made the disclosure statement to the Munshi while the SHO who was conducting the investigation was not there, that the contents of the disclosure statement were not read over to him by the police, that he had heard in court on the date of his giving evidence that the police and PW Govind Parshad had gone to the houses of the accused persons but he had not accompanied the police to the houses of the accused persons and that signatures were put by the police in the police station. He further stated that disclosure statement, seizure memo, as also recovery memo were prepared in the police station and signatures obtained there only, thus he has stated a version contrary to that stated by other witnesses. He further stated that disclosure statement, seizure memo, as also recovery memo were prepared in the police station and signatures obtained there only, thus he has stated a version contrary to that stated by other witnesses. Another aspect of the matter which needs taking note of is that while" disclosure statement is stated to have been made by accused in Dogri the same was recorded in Urdu. 15. Another aspect of the matter which needs taking note of is that while" disclosure statement is stated to have been made by accused in Dogri the same was recorded in Urdu. 15. Three independent witnesses having been declared hostile, key figures of the incident namely Vijay Kumar, Govind Parshad and Bhim Raj i.e. brothers having given contradictory versions with regard to the snatching and seizure of the amount, PW Govind Parshad having stated that he had not given the names of the accused on account of it being dark therefore he is not being able to identify the accused, other witnesses also having stated that they could not identify the accused besides had not given their names, PW Bhim Raj not being an eye witness and having stated that he was informed about the occurence by Kewal Krishan who has been declared hostile, PW Govind Parshad having gone to a side at the place of occurrence during the incident, there being no record of identification parade of accused having been carried out, disclosure statement stated to have been made by accused in Dogri whereas the same was recorded in Urdu, PW Vijay Kumar having stated that the accused fled on the Scooter in question whereas as per investigation report scooter was lying at the place of occurrence and was seized by the police, of the IO stating that identification parade had been conducted but there being no record in respect thereto, besides in his cross examination IO admitting that he had not conducted identification parade of accused, PW Raj Kumar, an independent witness deposing that no disclosure statement was made in his presence and that the disclosure statements and seizure memos which bore his signatures were wrong, of accused Janak Raj having been stated to have been arrested by the Police on the same night within about one and a half hour of the incident despite non recognition of accused by PW Govind Parshad due to darkness, resultantly non giving of names of accused in the FIR nor identification of accused Janak Raj having been got done from PW Govind Parshad, of accused Bodh Raj having stated to have accepted in the disclosure statement that accused had beaten Vijay Kumar and snatched the money, but there being no words to that effect in the disclosure statement, PW Bhim Singh having stated that the accused were tied to the locker in the room of the Munshi of the Thana and had made disclosure statement to the Munshi while the IO was not there, contents of disclosure statement not having been read over to him by the police, of disclosure statement, seizure memo, as also recovery memo having been prepared in the police station and signatures obtained there only does not help the prosecution case in any way. Having given our thoughtful consideration to the case, we in the position noted above are of the view that the prosecution has failed to proved the case against the respondents beyond reasonable doubt. Thus the conclusion drawn by the learned Trial Court holding that no offence was made out against the accused u/ss 307/395/326/324/ 148/149/34/323 RPC and 4/25 Indian Arms Act does not warrant any interference. Resultantly, the appeal is dismissed. Copy of the judgment be transmitted to the trial Court. Appeal dismissed