JUDGMENT : Vivek Singh Thakur, J. 1. Aggrieved by acquittal of respondent-accused vide judgment dated 30.10.2012 passed by the learned Additional Sessions Judge (I) Kangra at Dharamshala H.P. in Sessions Case No. 89-G/2010, in case FIR No. 69/2010 registered under Sections 302 and 201 of the Indian Penal Code in Police Station Dehra District Kangra H.P. the State has preferred present appeal with prayer to set aside impugned judgment and to convict respondent-accused. 2. We have heard learned Deputy Advocate General for the appellant-State and counsel for respondent and have also perused record of the case. 3. On 12.06.2010 Crime Investigation Agency was set in motion by Lekh Raj Ward Panch Gram Panchayat Bhaner by telephonically informing Police Post Teras that dead body of Om Parkash was found on side of Kuhal near the road. Said information was further telephonically disseminated to Police Station Dehra by PW-14 ASI Manmohan, Chowki In-charge Police Post Taras. Police parties from Police Post Taras and Police Station Dehra headed by PW-14 ASI Manmohan Singh and PW-16 SI Tilak Raj reached on the spot. During investigation, it surfaced that deceased Om Parkash was unmarried and was doing shuttering business. His three brothers were serving out stations and Salochna wife and Vinod son of Krishan one brother of deceased, were residing with deceased Om Parkash in native village. On 11.06.2010 after taking meal at 10.00 AM, deceased Om Parkash left home for arranging shuttering. However he went Taras alongwith some residents of village namely Surinder Singh, Sat Pal, Rasal Singh, Ram Dei, Bishan Dutt Sharma and Sanjeev Kumar in vehicle No. HP-36-3291 driven by PW-4 Rajesh Kumar. All of them took meals in Langar at Lal Tanki Chowk in Taras and except Rasal Singh, Ram Dei and Bishan Dutt, all others visited Talwara for shopping. Thereafter they came to Police Post, Taras in connection with a complaint against PW-6 Surinder Singh made by one Parladh Singh. After compromising the said matter, they consumed liquor at liquor vend and had drinks at Lal Tanki also and thereafter started back to home. First of all Bishan Dutt had de-boarded vehicle near his house and thereafter Surinder Singh, Sat Pal Singh, Rasal Singh and Ram Dei alighted vehicle near their respective residences. After compromising the said matter, they consumed liquor at liquor vend and had drinks at Lal Tanki also and thereafter started back to home. First of all Bishan Dutt had de-boarded vehicle near his house and thereafter Surinder Singh, Sat Pal Singh, Rasal Singh and Ram Dei alighted vehicle near their respective residences. Rajesh Kumar, Sanjeev Kumar and Om Parkash reached near Shiv Mandir where at a distance of about 500 yards, deceased Om Parkash alighted from vehicle after stopping it by compelling driver. Thereafter PW-4 Rajesh Kumar and Sanjeev Kumar also went to their respective houses but Om Parkash did not reach in his house but his dead body was noticed by people with small injury on his head with oozing blood out from nose and mouth. There were no other injuries or bruises on his body but his clothes and slippers were not there. 4. Aforesaid information was entered at General Diary Entry No. 36(A) on 12.06.2010 in Police Station Dehra, copy of which Ex. 16/G is on record. Police including Deputy Superintendent of Police, Dehra visited spot and inquired villagers on 12.06.2010, 13.06.2010, 14.06.2010 and 17.06.2010. Villagers, including persons accompanying deceased on 11.06.2010, were interrogated by the police. Brothers and other family members were also associated in the interrogation. 5. Till 17th June 2010 there was no change of circumstances. On that day suddenly statement of PW-4 Rajesh Kumar was reduced into writing and in the said statement it was narrated by him that on 11.06.2010 Sanjay Kumar alighted from vehicle and compelled Om Parkash to get down from vehicle despite his resistance and on next day dead body of Om Parkash was noticed by villagers at 6.30 AM. Statement of PW-4 Rajesh Kumar was also recorded under Section 164 Cr.PC stating therein that near Shiv Mandir, Sanjay Kumar and deceased Om Parkash alighted from vehicle and he went home. 6. On the basis of statement of PW-4 Rajesh Kumar respondent Sanjay Kumar was arrested on the same day. As per prosecution case police was searching for clothes of deceased Om Parkash since 12.06.2010 in all probable places including houses of Rajesh Kumar and Sanjeev Kumar. 6. On the basis of statement of PW-4 Rajesh Kumar respondent Sanjay Kumar was arrested on the same day. As per prosecution case police was searching for clothes of deceased Om Parkash since 12.06.2010 in all probable places including houses of Rajesh Kumar and Sanjeev Kumar. It is claimed by prosecution that on 18th June 2010 during his custody, respondent in presence of Harnam Singh and Gian Singh made disclosure statement Ex.P-7/B in presence of PW-7 Harnam Singh and Gian Singh in Police Station Dehra and on the basis of said statement clothes of deceased were recovered at the instance of respondent from place pointed out by him near water source at a distance of 400 yards from Shiv temple and 50 feet below the road. Those clothes were identified by PW-5 Vinod Kumar nephew of deceased. 7. Postmortem of dead body of deceased was conducted by PW-8 Dr. Vivek Kaushal and viscera of deceased was sent to State FSL, Junga for chemical analysis. Alcohol was detected in parts of stomach, small intestine, spleen and kidney and no other poison could be detected in these parts. Cause of death, as per opinion of Doctor, was shock due to head injury. 8. Present case of prosecution is based on circumstantial evidence. Prosecution has relied upon ‘last seen together’ supported by ‘motive’ and disclosure statement of the respondent-accused. 9. It is a settled law that in case of circumstantial evidence conviction should be recorded only if the chain pointing to the guilt of respondent-accused is firmly established linking the accused with crime firmly and not only creating suspicion as the suspicion however strong evidence itself may not take place of proof. All the circumstances must be consistent only with hypothesis of the guilt. 10. Though, murders are also committed even without any pre-emptive motive. In cases based on circumstantial evidence motive, however is an important factor and a strong circumstance. 11. In present case prosecution has relied upon circumstances of ‘last seen together’ disclosure statement followed by recovery of clothes and enmity. 12. After completing investigation challan was put in the court against respondent-accused only and 16 witnesses were examined by prosecution and statement of respondent under Section 313 of the Code of Criminal Procedure was recorded. 13. To prove ‘motive, only evidence on record is testimony of PW-2 Krishan Chand who is brother of deceased Om Parkash. 12. After completing investigation challan was put in the court against respondent-accused only and 16 witnesses were examined by prosecution and statement of respondent under Section 313 of the Code of Criminal Procedure was recorded. 13. To prove ‘motive, only evidence on record is testimony of PW-2 Krishan Chand who is brother of deceased Om Parkash. He stated that deceased Om Parkash was former Panch of Panchayat. Joginder Singh used to come to Om Parkash twice in a week for consultation in a case pending at Shimla against Arjun Singh who was father of respondent and as such family of respondent was inimical towards deceased Om Parkash and they suspected that respondent had committed murder. During cross examination this witness admitted that till 20.06.2010 he did not suspect any person having committed murder. He also admitted that there was no land dispute or any other dispute of their family with family of respondent but he again stated that there was some dispute about 10 years ago with mother of Arjun Singh. He further added that in the year 2004-2006 girls of their family and family of respondent had some dispute and matter was adjudicated before Panchayat and therefore they were not in talking terms with family of respondent. Respondent was arrested on 17.06.2010 but till 20.06.2010 no suspicion about murder was there. Despite arrest of respondent, PW-2 Krishan Chand or other family members of deceased Om Parkash did not utter even a single word about enmity pointed out by PW-2 Krishan Chand that too for first time in the Court. He admitted in cross examination that all these facts were not been stated by him before police on 20.06.2010 at the time of making statement, he gave explanation that these facts were not asked by any one from him. It appears that in order to ascertain conviction of respondent after believing story put forth by police, PW-2 tried to exaggerate and improve his statement and thus his statement is to be ignored. Statement of PW-2 with respect to enmity is not confidence inspiring and there is no other evidence on record indicating any motive attributable to respondent for committing murder of deceased OM Parkash. 14. PW-7 Harnam Singh Panch of Gram Panchayat Bhaner also admitted that deceased Om Parkash did not make any complaint to Panchayat against respondent or his family members. Statement of PW-2 with respect to enmity is not confidence inspiring and there is no other evidence on record indicating any motive attributable to respondent for committing murder of deceased OM Parkash. 14. PW-7 Harnam Singh Panch of Gram Panchayat Bhaner also admitted that deceased Om Parkash did not make any complaint to Panchayat against respondent or his family members. Prosecution also never placed on record any document to show that family of respondent was inimical towards deceased Om Parkash. However, absence of motive or failure to prove motive cannot be a basis to conclude that respondent had not murdered deceased Om Parkash. Therefore, rest of evidence is to be assessed for arriving at final conclusion. 15. Prosecution also relied upon disclosure statement Ex. PW-7/B. PW-7 Harnam Singh stated that on 18.06.2010 they were called to Police Station Dehra and Gian Chand Chowkidar was accompanying him and respondent who was also there gave statement Ex.PW-7/B in presence of SHO and 2-3 other police officials. In cross examination this witness stated that on 18.06.2010 he received telephonic message from PW-16 SI Tilak Raj, SHO Police Station Dehra asking him to come at Dehra as statement of respondent was to be recorded. He further stated that he reached Police Station around 11.00 AM but he could not tell as to since when questioning was going in Police Station and SHO did not tell as to what facts were disclosed during questioning. PW-7 further stated that SHO informed that Sanjay had told about clothes to be recovered and thereafter signatures of witnesses were obtained. He further admitted that SHO asked him to bring one more respectable person to be present in Police Station alongwith him. He stated that police was having his telephone number. This witness admitted that they signed on the basis of information supplied by SHO. Admission of this witness in cross examination rendered veracity of disclosure statement Ex. PW-7/B under suspicions. Out of two independent witnesses, only PW-7 Harnam Singh was examined and PW Gian Singh was given up by prosecution. Therefore, Ex.PW-7/B cannot be considered a valid disclosure statement under Section 27 of the Indian Evidence Act so as to rely upon to convict respondent. 16. Prosecution claimed recovery of clothes of deceased at the instance of respondent in presence of PW-7 Harnam Singh and PW Gian Singh. Therefore, Ex.PW-7/B cannot be considered a valid disclosure statement under Section 27 of the Indian Evidence Act so as to rely upon to convict respondent. 16. Prosecution claimed recovery of clothes of deceased at the instance of respondent in presence of PW-7 Harnam Singh and PW Gian Singh. In absence of valid and admissible disclosure statement alleged recovery of clothes cannot be considered as incriminating evidence against respondent. Moreover, PW-7 Harnam Singh admitted that place from where clothes were recovered was on the way of a short cut leading to ‘Bowary’ (Water Source) for bringing water which was being used by people throughout the year and the place from where clothes were recovered was also not secluded or hidden place but was an open place. PW-5 Vinod Kumar identified clothes of deceased Om Parkash but the said identification of clothes cannot be said to be sufficient proof to consider disclosure statement and recovery of clothes to prove guilt of respondent. 17. To prove ‘last seen together’ prosecution relied upon testimony of PW-3 Kamal Kumar, PW-4 Rajesh Kumar and PW-6 Surinder Singh. 18. PW-3 Kamal Kumar stated that he asked PW-4 Rajesh Kumar to bring feed for cattle from Sansarpur Taras and at about 10.20-11.00 PM he unloaded said feed from vehicle of PW-4 Rajesh Kumar and at that time there was no one in the vehicle except Rajesh Kumar and thereafter Rajesh Kumar went to his home. He further stated that on 12.06.2010 Roshan Lal, at the time of going to answer the call of nature at around 5-6 AM noticed dead body lying near the Kuhal. He admitted that he was questioned by police but his statement was recorded on 20.06.2010. Testimony of this witness is not reliable for reason that police made request vide application Ex. PW- 8/A on 12.06.2010 to Medical Officer SDH Dehra for postmortem of dead body of deceased narrating entire episode of 11.06.2010 as disclosed by Rajesh Kumar but in that application fact of bringing cattle feed for PW-3 Kamal Kumar did not find mention. Similarly this fact did not find mention in ‘Rukka’ PW-16/C prepared on 13.06.2010 and DD report Ex. PW-16/G recorded in 12.06.2010. Statement PW-3 Kamal Kumar was recorded on 20.06.2010 and no reasons were assigned by this witness for not disclosing this fact prior to that despite the fact that he was being questioned by police since beginning. Similarly this fact did not find mention in ‘Rukka’ PW-16/C prepared on 13.06.2010 and DD report Ex. PW-16/G recorded in 12.06.2010. Statement PW-3 Kamal Kumar was recorded on 20.06.2010 and no reasons were assigned by this witness for not disclosing this fact prior to that despite the fact that he was being questioned by police since beginning. Therefore, this witness is not trustworthy. 19. Statement of PW-6 Surinder Singh is also not sufficient to hold that it was respondent only who was ‘last seen together’ with deceased as at the time of leaving vehicle by this witness there were three persons in the vehicle namely PW-4 Rajesh Kumar, respondent Sanjay Kumar and deceased Om Parkash. This witness admitted that on 11.06.2010 they had no quarrel with each other after consuming liquor and also during their return in the vehicle to village. He stated that he was not having any suspicion against any persons. 20. In the aforesaid circumstances, testimony of PW-4 is only evidence to prove ‘last seen together’ of respondent with deceased but his veracity is also doubtful. He was being interrogated since 12.06.2010 to 17.06.2010 and his stand was that deceased Om Parkash himself alighted from vehicle after compelling him and he and Sanjay Kumar were last persons together with each other after alighting vehicle by deceased Om Parkash. Suddenly on 17.06.2010, he came with story that it was Sanjay who forcibly alighted deceased Om Parkash from vehicle near Shiv Temple and he also introduced fact of bringing cattle feed for PW-3 Kamal Kumar. Prosecution tried to explain with the help of PW-7 Harnam Singh by introducing the fact in his statement that PW-4 Rajesh Kumar had disclosed it to him on 12.06.2010 and PW-7 Harnam Singh had advised PW-4 to tell truth whenever police would come to village. PW-7 Harnam Singh stated that thereafter police came in village on 17.06.2010 but the said stand of PW-7 is false as PW-16 SI Tilak Raj clearly stated that he visited the spot 12.06.2010, 13.06.2010 and 14.06.2010. Not only PW-16 SI Tilak Raj but Deputy Superintendent of Police, Dehra had also visited spot between 12.06.2010 to 17.06.2010. It is also again a mystery which prevented PW- 7 Harnam Singh to inform the police regarding facts disclosed by PW-4 Rajesh Kumar to him on 12.06.2010. Not only PW-16 SI Tilak Raj but Deputy Superintendent of Police, Dehra had also visited spot between 12.06.2010 to 17.06.2010. It is also again a mystery which prevented PW- 7 Harnam Singh to inform the police regarding facts disclosed by PW-4 Rajesh Kumar to him on 12.06.2010. PW-4 Rajesh Kumar stated in cross examination that he disclosed to Pradhan on 13.06.2010 and police came in village on 14.06.2010 but did not record his statement and recorded it only on 17.06.2010 and he was asked not to disclose this fact to any other person. PW-14 ASI Manmohan stated that he had not advised PW-4 Rajesh Kumar to make his statement only before SHO Dehra and not to disclose his statement to any other person. What emerges from all these contradictory statements that testimony of PW-4 is not reliable. 21. Postmortem of deceased was conducted on 12.06.2010 and viscera was also handed over to police on the same day which was further handed over to MHC Police Station, Dehra on 12.06.2010 but said viscera was sent to State FSL Junga on 17.06.2010. Clothes of deceased were recovered on 18.06.2010 but same were also sent to State FSL, Junga on 24.06.2010. PW-16 admitted these facts but no reason has been assigned for keeping these parcels for seven days in waiting for sending State FSL Junga. In normal circumstances delay in sending parcels to State FSL Junga may not be of any significance but in the circumstances of present case delay in sending these parcels to State FSL Junga also fortifies doubt on fairness of investigation. 22. It is evident from aforesaid discussion that chain of circumstantial evidence to prove the guilt of accused is not complete and prosecution evidence cannot be treated as cogent, reliable, credible and trustworthy to prove guilt of the accused-respondent beyond reasonable doubt. There are material contradictions and discrepancies in the testimonies of material witnesses. Thus, it cannot be said that prosecution has been able to prove that respondent-accused has committed offence under Sections 302 and 201 of the Indian Penal Code. 23. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Thus, it cannot be said that prosecution has been able to prove that respondent-accused has committed offence under Sections 302 and 201 of the Indian Penal Code. 23. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. It cannot be said that learned trial court has not appreciated evidence correctly and completely and acquittal of accused has resulted into travesty of justice or has caused miscarriage of justice. The accused has been acquitted by the trial Court. No case for interference is made out. 24. The present appeal, devoid of any merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back forthwith.