JUDGMENT : Dharam Chand Chaudhary, J. 1. State of Himachal Pradesh is aggrieved by the judgment dated 27.11.2012 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Sessions Trial No. 6-P/VII/2011, whereby the respondent Dalip Kumar (hereinafter referred as to the ‘accused’) has been acquitted of the charge under Section 302 of the Indian Penal Code framed against him with the allegations that on 26/27.10.2010 he caused death of Arvind Goswami by inflicting blow of pickaxe (Gainti) and thereby committed the offence punishable under Section 302 of the Indian Penal Code. 2. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that cogent and reliable evidence produced by the prosecution has erroneously been discarded without assigning any reasons. Therefore, the acquittal of the accused is stated to be in utter disregard of material evidence available on record. The testimony of PW-1 Ankush Kumar and his father Chandersheel that accused confessed his guilt before them on 26.10.2010 and thereafter fled away from the spot is not appreciated at all. The extra judicial confession so made by the accused and duly proved on record in accordance with law has also not been appreciated at all. The findings that PW-1 was neither Panch or Pradhan of Gram Panchayat nor had any acquaintance with the accused, there was no occasion to the latter to have confessed his guilt before him nor he had expected from the said witness to save him from his prosecution, are erroneously recorded. The trial Court has allegedly failed to appreciate that irrespective of the accused an outsider was working as labourer in the house under construction of PW-1 and his father PW-8 at village Gandhar, District Kangra, hence was known to them is also ignored. Both PW-1 and PW-8 rather were the best persons before whom the accused could have confessed his guilt with the expectation that they may save him from his prosecution. The testimony of PW-9 Jugal Kishore and PW-10 Purshotam Chand qua the disclosure statement Ext. PW-9/A and the recovery of pickaxe Ext. P-1, pursuant to the same has also been misconstrued. Learned trial Court has also failed to appreciate the evidence as has come on record by way of their testimony that the pickaxe, weapon of offence was recovered at the instance of accused. PW-9/A and the recovery of pickaxe Ext. P-1, pursuant to the same has also been misconstrued. Learned trial Court has also failed to appreciate the evidence as has come on record by way of their testimony that the pickaxe, weapon of offence was recovered at the instance of accused. The medical evidence as has come on record by way of testimony of PW-2 Dr. Vinay Mahajan that the blow as was on the head of deceased could have been caused with pickaxe, Ext. P-1 has also been ignored erroneously. The findings that the pickaxe when produced before the doctor PW-2 to obtain his opinion was not stained with blood, are contradictory to the evidence available on record as according to the appellate-State the Court below has failed to appreciate that non-mentioning of such facts by the doctor in the post-mortem report is not fatal to the prosecution case. The factum of PW-1 and PW-8 have corroborated the version of each other and they had no enmity to implicate the accused falsely in this case is also not taken into consideration. 3. The occurrence allegedly has taken place on 26.10.2010 during the night time at village Gandhar in the under construction house of PW-8 Chandersheel and took away the life of Arvind Goswami, the deceased, resident of village Lakhanpur, Post Office Navinpur, Police Station and District Jamuhi (Bihar). The allegations against the accused again a fellow villager and co-labourer of deceased are that, it is he who killed him by way of inflicting the blow of pickaxe, Ext. P-1 when the deceased was under the influence of liquor and allegedly quarreled with the accused. As per further case of the prosecution, the accused along with deceased and one Avdesh was engaged as labourers by PW-1 and PW-8 to execute work of laying marvel in their house under construction at village Gandhar. On the fateful day, Avdesh came to the old house of PW-1 and PW-8 to have curd from them at 9.00 p.m. Behind him accused also came there. They both watched programme on television for a while. After sometime, the complainant went to the under construction house in the village along with accused Dalip Kumar and his fellow labourer Avdesh. On the fateful day, Avdesh came to the old house of PW-1 and PW-8 to have curd from them at 9.00 p.m. Behind him accused also came there. They both watched programme on television for a while. After sometime, the complainant went to the under construction house in the village along with accused Dalip Kumar and his fellow labourer Avdesh. On the way, when they were near Radha Krishan temple, accused told PW-1 that deceased under the influence of liquor started hurling abuses to him and also quarreled and as he did not stop hurling abuses and quarreling with him despite request made, he killed him. On this, PW-1 returned to the old house along with accused and Avdesh. There he apprised his father PW-8 Chandersheel about the disclosure so made by accused Dalip Kumar. On this, he (PW-1) his father Chandersheel and his cousin Sanjeev Kumar accompanied by the accused and Avdesh went to the house under construction. PW-8 asked the accused to open the door. The accused told him that door is open. They all entered inside the house to see deceased Arvind Goswami. The accused who was standing outside, however, fled away towards nearby fields. In the room, they noticed the dead body of Arvind Goswami covered with white coloured printed Chaddar and blood oozing out of the wound on his head. On seeing Arvind Goswami, he was found to have already expired. They tried to search the accused, however, he was not available. On this PW-8 had informed Purshotam Chand (PW-10), Pradhan Gram Panchayat and also PW-9 Jugal Kishore, Ward Panch. They also arrived on the spot. PW-10 informed the police of Police Station, Lambagaon, District Kangra over telephone. In the police station, the information so received was entered in the daily diary vide rapat Ext. PW-14/A at 23.45 hours (11.45 p.m. mid night). Consequently, the I.O. SI/SHO Tilak Chand accompanied by SI Gambhir Chand and other police officials rushed to the spot in official vehicle. After recording the statement Ext. PW-1/A, the same was sent to police station for registration of case through HHC Vinod Kumar. On the basis thereof FIR Ext. PW-11/A was registered. 4. PW-14 received the case file and called PW-13 Sinodh Kumar, a photographer and got the dead body photraphed vide photographs Ext. PW-13/A to Ext. PW-13/D. On spot inspection, map Ext. PW-1/A, the same was sent to police station for registration of case through HHC Vinod Kumar. On the basis thereof FIR Ext. PW-11/A was registered. 4. PW-14 received the case file and called PW-13 Sinodh Kumar, a photographer and got the dead body photraphed vide photographs Ext. PW-13/A to Ext. PW-13/D. On spot inspection, map Ext. PW-14/C was prepared on the next day, blood stained mattress (talai) Ext. P-3 was taken in possession vide memo Ext. PW-9/A in the presence of PW-9 and PW-10. The sample of blood lying scattered on the floor near the dead body was lifted with cotton cloth, Ext. P-5 and put in a plastic vial, Ext. P-4. The same was taken in possession vide memo Ext. PW-9/B in presence of PW-9 and PW-10. The inquest papers Ext. PW-2/B were prepared. The application Ext. PW-2/A was made to the Medical Officer, CHC, Palampur and the dead body was sent through HC Chaman Singh for conducting the postmortem. The accused was apprehended on 27.10.2010 at Sujanpur. He was brought to the police station and during his interrogation conducted on 28.10.2010, he made disclosure statement Ext. PW-9/E to the effect that he had concealed the pickaxe under the bushes near the house under construction of PW-8 Chandersheel and that it is he who could get the same recovered. He led the police party to the place near the house under construction and took out the pickaxe from the bushes which was photographed vide photograph Ext. PW-13/E and taken in possession vide memo Ext. PW-9/E duly sealed. The map Ext. PW-14/C of the place of recovery was also prepared separately. The statements of witnesses were recorded. In order to seek the opinion of the Medical Officer that injury caused with Ext. P-1 could have possibly caused the death of deceased, the application Ext. PW-2/D was moved. In the opinion of doctor, the fatal injury resulting the death of deceased could have been implicated therewith. The post mortem report Ext. PW-2/C was collected from the hospital. On the application, Ext. PW7/A moved to the Assistant Engineer, H.P.P.W.D. site plan Ext. PW-7/B was got prepared and added in the police file. On receipt of the report of chemical examiner Ext. P-A and Ext. P-B and on completion of the investigation, challan was filed against the accused in the Court. 5. PW-2/C was collected from the hospital. On the application, Ext. PW7/A moved to the Assistant Engineer, H.P.P.W.D. site plan Ext. PW-7/B was got prepared and added in the police file. On receipt of the report of chemical examiner Ext. P-A and Ext. P-B and on completion of the investigation, challan was filed against the accused in the Court. 5. Learned trial Judge after recording its satisfaction qua the existence of prima-facie case against the accused had framed the charge under Section 302 of the Indian Penal Code against him. He, however, pleaded not guilty to the charge and claimed trial. Therefore, the prosecution in order to sustain the charge against him has examined 14 witnesses in all. The material prosecution witnesses are, however, PW-1 Ankush Kumar, PW-8 Chandersheel, PW-9 Jugal Kishore and PW-10 Purshotam Chand. The remaining prosecution witnesses are formal as PW-2 Dr. Vinay Mahajan has been associated to prove the post-mortem report Ext. PW-2/C and his opinion qua cause of death of deceased as well as the blow inflicted with pickaxe Ext. P-1 could have caused his death or not. PW-3 HHG Ravinder Kumar had obtained the opinion of Medical Officer as to whether the death of deceased could have been caused with the blow of pickaxe Ext. P-1. PW-4 Prem Chand had deposited the sealed parcels six in number containing the case property of this case in FSL, Junga. PW-5 HC Khem Chand was officiating as MHC in the police station at the relevant time to whom the custody of case property of this case was entrusted by the I.O. PW-14. He entered the same in the malkhana and retained in his safe custody. PW-6 Kuldeep Chand was posted as regular MHC and as he was on leave and in his absence PW-5 was officiating as MHC, on his arrival to the police station after availing leave, the custody of case property of this case was entrusted to him by PW-5. Later on, it was sent by him to FSL vide RC No. 107/10, Ext. PW-6/A through HHC Prem Chand. PW-7 is the Surveyor who was working as such in H.P.P.W.D Subdivision, Thural. On the application Ext. PW-7/A, moved by the police, he had prepared the site plan Ext. PW-7/B. PW-11 ASI Suresh Kumar had registered the FIR Ext. PW- 11/A on the receipt of rukka Ext. PW-6/A through HHC Prem Chand. PW-7 is the Surveyor who was working as such in H.P.P.W.D Subdivision, Thural. On the application Ext. PW-7/A, moved by the police, he had prepared the site plan Ext. PW-7/B. PW-11 ASI Suresh Kumar had registered the FIR Ext. PW- 11/A on the receipt of rukka Ext. PW-1/A. PW-12 Gambhir Chand had conducted the investigation of this case partly as the statement of Arun Kumar, PW-7 was recorded by him. PW-13 is the photographer, who had taken the photographs Ext. PW-13/A to Ext. PW-13/D with his digital camera. The I.O. of this case is PW-14 Inspector Tilak Raj, who had conducted the investigation of this case. 6. Learned trial Court on appreciation of the evidence available on record and hearing learned Public Prosecutor as well as learned defence counsel has concluded that the prosecution has failed to prove the disclosure statement Ext. PW-9/E. The testimony of PW-1 and PW-8 is also stated to be hearsay as the occurrence had not taken place in their presence. In the opinion of learned trial Judge, their testimony should have not been taken to fasten any criminal liability upon the accused. It was further observed that only important witness could have been Avdesh, who was living in the same room and working as labourer with the accused, however, the prosecution to the reasons best known to it has not opted for being associated him nor he has been examined. The prosecution in the opinion of learned trial Judge had failed to prove its case against the accused beyond all reasonable doubt. He, as such, was acquitted of the charge. 7. Mr. D.S. Nainta, learned Additional Advocate General has argued with all vehemence that the testimony of PW-1 and PW-8 supported by the disclosure statement Ext. PW-9/E and the recovery of pickaxe Ext. P-1, consequent upon the same is suggestive of that the prosecution had proved its case against the accused beyond all reasonable doubt. However, cogent and reliable evidence produced by the prosecution has not been considered and erroneously brushed aside. 8. On the other hand, Mr. Bhuvnesh Sharma, Advocate assisted by Mr. Surender Mohan Sharma, Advocate representing the accused has urged that direct evidence has not been produced by the investigating agency to the reasons best known to it. The testimony of PW-1 and PW-8 being highly undependable and unreliable, has rightly been ignored by learned trial Judge. 8. On the other hand, Mr. Bhuvnesh Sharma, Advocate assisted by Mr. Surender Mohan Sharma, Advocate representing the accused has urged that direct evidence has not been produced by the investigating agency to the reasons best known to it. The testimony of PW-1 and PW-8 being highly undependable and unreliable, has rightly been ignored by learned trial Judge. Also that, the recovery of pickaxe Ext. P-1, consequent upon the disclosure statement Ext. PW-9/E is not at all proved, as according to learned counsel the witnesses PW-9 and PW-10 have not supported the prosecution case in this regard at all nor proved that the disclosure statement allegedly made by the accused while in the custody was recorded in the police station. Therefore, the accused, according to learned counsel, has rightly been acquitted of the charge by learned trial Judge. 9. On reappraisal of the facts and circumstances of this case and also the evidence available on record as well as taking into consideration the rival submissions, the only question arises for our consideration is that though the prosecution had proved its case against the accused beyond all reasonable doubt, however, it is the learned trial Court, which has failed to appreciate the same and erroneously recorded the findings of acquittal. However, before coming to answer the poser so arises for our consideration, it is desirable to take note as to what constitutes an offence punishable under Section 302 of the Indian Penal Code. 10. As per Section 300 IPC, culpable homicide is murder firstly if the offender is found to have acted with an intention to cause death or secondly with an intention of causing such bodily injury knowing fully well that the same is likely to cause death of someone or thirdly intention causing bodily injury to any person and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if it is known to such person that the act done is imminently dangerous that the same in all probability shall cause death or such bodily injury as is likely to cause death. 11. Culpable homicide has been defined under Section 299 IPC. 11. Culpable homicide has been defined under Section 299 IPC. Whoever causes death by way of an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death can be said to have committed the offence of culpable homicide. Culpable homicide is murder if the act by which death is caused is done with the intention of causing death. Expression “intent” and “knowledge” postulate the existence of a positive mental attitude which is of different degree. We are drawing support in this regard from the judgment of Apex Court in Jagriti Devi vs. State of Himachal Pradesh, AIR 2009 SC 2869 . 12. The ingredients of culpable homicide amounting to murder therefore are; (i) causing death intentionally and (ii) causing bodily injury which is likely to cause death. Whether the present is a case where the evidence available on record is suggestive of that it is the accused who had inflicted the blow of pickaxe, Ext. P-1 when the deceased was under the influence of liquor and allegedly quarreled with him, intentionally to cause his death and such an act on his part amounts to culpable homicide amounting to murder or not, needs re-appraisal of the evidence available on record. However, before that it is deemed appropriate to point out that if the accused had motive to cause the death of the deceased, the eye witness count of the occurrence may not be required, however, where the motive is missing, the prosecution is required to prove its case with the help of testimony of eye witnesses. 13. Now if coming to the question hereinabove, which has engaged our attention in this case. The answer thereto in all fairness and in the ends of justice would be in negative for the reason that the present is a case where cogent and reliable evidence to show that it is the accused alone who inflicted fatal blow on the head of deceased with pickaxe, Ext. P-1 at such a stage when latter was quarreling with the former under the influence of liquor and thereby caused his death, could have come on record by way of the testimony of Avdesh, a fellow labourer of the accused and deceased who was residing with them in the same room. P-1 at such a stage when latter was quarreling with the former under the influence of liquor and thereby caused his death, could have come on record by way of the testimony of Avdesh, a fellow labourer of the accused and deceased who was residing with them in the same room. However, such evidence which could have thrown some light qua the manner in which the occurrence and death of Arvind Goswami had taken place has been withheld by the prosecution to the reasons best known to it. 14. The star prosecution witnesses PW-1 and PW-8 are son and father respectively, in relation. Their house was under construction at village Gandhar. The accused, deceased and Avdesh were engaged by them to execute the work of laying marvel in the said house. Admittedly, they had not seen the deceased and accused quarreling with each other. They had also not seen the accused inflicting the blow on the head of deceased with pickaxe, Ext. P-1. Their testimony that the accused had caused fatal blow with pickaxe on the head of deceased even if believed to be true is hearsay because it is the accused himself who allegedly revealed so to PW-1 at such a stage when he along with Avdesh was going to the under construction house. On hearing the disclosure so made by the accused, PW-1 allegedly returned to the house in the same village along with him and Avdesh and there he apprised his father PW-8 about the disclosure so made by the accused. The only direct evidence, qua the manner in which the incident sparked off and the occurrence took place could have come on record by way of associating Avdesh during the course of investigation and also examining him as a witness during the course of trial. Since he has not been examined, therefore, the plea of the accused that he was in the house of PW-1 and PW-8, they had implicated him falsely. On being asked by the I.O., PW-14 to implicate someone in this case, failing which, it is they who will be booked for the murder of deceased. Arvind Goswami whose dead body was lying in their house under construction, appears to be nearer to the factual position. The testimony of PW-1 and PW-8 that it is the accused who had murdered the deceased, therefore, being hearsay has rightly been discarded by learned trial Judge. Arvind Goswami whose dead body was lying in their house under construction, appears to be nearer to the factual position. The testimony of PW-1 and PW-8 that it is the accused who had murdered the deceased, therefore, being hearsay has rightly been discarded by learned trial Judge. The remaining part of the testimony of PW-8 pertains to the proceedings conducted by the I.O. including inspection of the dead body, getting the same photographed, preparation of inquest papers and sending the dead body for postmortem etc. etc. is formal in nature, hence need not to be elaborated. 15. It is well settled that the extra judicial confession by an accused is made only to a person close to him and from whom he expect that he/she will save him from his prosecution. The law laid down by the apex Court by way of various judicial pronouncements qua this aspect of the matter has been discussed in detail by learned trial Judge. We are drawing support in this regard from the judgment of this Court also in Cr. Appeal No. 43 of 2006 and its connected matter titled Sudesh Sharma alias Shuppa vs. State of Himachal Pradesh decided on 02.06.2014. The acquaintance of PW-1 with the accused was only to the extent that the latter was working as labourer in their house under construction at village Gandhar. The accused and deceased both were resident of Bihar. PW-1 as such, was not a person either closely related to the accused or in his friend circle. The said witness was also neither Panch or Pradhan so as to infer that he could have influenced the local police or a person of the high status who could have protected the accused from his harassment by the police in this case. Therefore, there is no question of making the so called extra judicial confession by the accused before PW-1. Testimony of PW-9 and PW-10 qua this aspect of the matter is also of no help to the prosecution case for the reason that they were apprised by PW-8 qua the death of deceased caused by the accused by inflicting the blow with pickaxe, Ext. P-1. 16. The recovery of pickaxe, Ext. P-1 consequent upon the alleged disclosure statement is highly doubtful for the reason that as per the testimony of PW-14 the Investigating Officer, disclosure statement Ext. P-1. 16. The recovery of pickaxe, Ext. P-1 consequent upon the alleged disclosure statement is highly doubtful for the reason that as per the testimony of PW-14 the Investigating Officer, disclosure statement Ext. PW-9/E was made by the accused in the police station while in custody in the presence of PW-9 Jugal Kishore, the Ward Panch and PW-10 Purshotam Chand, Pradhan Gram Panchayat. True it is that both Jugal Kishore and Purshotam Chand have supported the prosecution case qua the statement so made by the accused, however, accused to them on the spot i.e. at village Gandhar where the house of PW-1 and PW-8 was under construction and not in the police station. Being so, there emerge two possible views i.e. as per testimony of the I.O. PW-14, such statement was recorded in the police station in the presence of PW-9 and PW-10, whereas, as per the testimony of these witnesses, the same was recorded on the spot. No doubt, PW-10 was recalled and re-examined and in his statement recorded on 27.06.2012, he had clarified that the accused was interrogated in the police station and his statement Ext. PW-9/E was recorded there in his presence and also in the presence of Ward Panch (PW-9). Also that portion ‘A’ to A’ and ‘B’ to ‘B’ of his statement recorded on 14.10.2011 is due to the reason that he had forgotten the facts. When cross-examined, it is stated that he reached in the police station at 5.00 a.m. on that day. It is Chandersheel PW-9 who had called him there. The clarification so come on record is also of any help to the prosecution case for the reason that the testimony of PW-9 Jugal Kishore that the so called disclosure statement was recorded at the spot remained un-shattered. Not only this but Chandersheel while in the witness box as PW-8 has not said anything about the recording of statement Ext. PW-9/E. Had in term of the clarification given by PW-10 the said witness was called to the police station by PW-8, Chandesheel, this witness would have also present there. Therefore, he should have also been examined qua this aspect of the matter. PW-9/E. Had in term of the clarification given by PW-10 the said witness was called to the police station by PW-8, Chandesheel, this witness would have also present there. Therefore, he should have also been examined qua this aspect of the matter. The failure to do so amply demonstrates that nothing of the sort did take place on the spot nor the accused made any disclosure statement to the police while in custody and as such the statement seems to have been engineered and fabricated to implicate the accused falsely in this case. The possibility that he was subjected to 3rd degree method while in custody during the night intervening 27/28.10.2010 and made to sign this document, cannot be ruled-out. 17. When recording of disclosure statement in the manner as claimed by the prosecution is not at all proved, there is no question of recovery of pickaxe, Ext. P-1 on the basis thereof. Otherwise also, the so called motive that accused under the influence of liquor started hurling abuses to the accused and it is for this reason, the latter assaulted him with pickaxe is not at all established because no-one has been associated to substantiate this part of the prosecution case. Had it been so, atleast Avdesh, their fellow labourer would have witnessed the quarrel, if any, taken place between the two. Had the deceased been killed by the accused, it is not understandable as to why he would have not fled away after the commission of crime. There was no occasion for him to have gone to the house of PW-1 and PW-8. He would have not accompanied PW-1 and PW-8 to the house under construction and the story that when they entered inside the under construction house, he stayed outside and fled away also seems to be engineered and fabricated and may be at the behest of PW-1 and PW-8 who were owners of the house under construction to save themselves from any possible imputation at a later stage made to them in connection with the death of Arvind Goswami. Therefore, for want of any direct evidence and the evidence as has come on record by way of testimony of PW-1 and PW-8 and for that matter of PW-9 and PW-10 which is neither cogent nor reliable, no criminal liability could have been fastened upon the accused. Therefore, for want of any direct evidence and the evidence as has come on record by way of testimony of PW-1 and PW-8 and for that matter of PW-9 and PW-10 which is neither cogent nor reliable, no criminal liability could have been fastened upon the accused. Learned trial Judge has, therefore, not committed any illegality or irregularity while acquitting the accused of the charge framed against him. 18. The remaining evidence as already pointed out is formal in nature and would have of some relevance had the prosecution been otherwise able to prove that deceased Arvind Goswami has been murdered by the accused. The same, therefore, need not to be elaborated any further. 19. In view of re-appraisal of the oral as well as documentary evidence on record, in our considered opinion, the trial Court has not committed any illegality or irregularity while passing the judgment under challenge in this appeal. The same, as such, is affirmed and the appeal is dismissed. Personal bonds furnished by the accused persons shall stand cancelled and sureties discharged.