JUDGMENT : Sanjay Kumar Gupta, J. Appellants/accused namely Rattan Lal and Kashmir Singh alias Kirpa Ram, both sons of Sant Ram R/o Kansar, Tehsil Bhaderwah ( for brevity ‘accused’), who have been convicted and sentenced by Principal Sessions Judge, Bhaderwah, vide impugned judgment/sentence dated 20.02.2013/21.02.2013 in FIR No.07/2004 of Police Station Bhaderwah for offences under Sections 302, 342/34 RPC, have filed present Cr. Appeal No.21/2013 and have prayed for setting aside the same. The learned Sessions Judge Bhaderwah has also made reference to this court for confirmation of sentence of life imprisonment imposed on appellants/convicts for offences under Sections 302, 342/34 RPC. 2. Brief facts of the case are that on 14.01.2004, BMO from Bhaderwah Hospital gave information in Police Station Bhaderwah through telephone that one person namely Jia Lal is admitted in the Hospital in injured condition. On this information one Anzar Ahmed PSI as per report No.18, Daily Diary dated 14.01.2004 was sent to hospital for further proceedings and he recorded the statement of injured Jia Lal, who stated that he is resident of village Kansar and is labourer. On 13.01.2004 at about 5.30 P.M. on the date of Lohri he was bringing his brother-in-laws Kashmir Singh alias Kirpa Ram and Rattan Lal to his home and when he was about to reach at home, scuffle took place between them and his brother in laws attacked him. Rattan Lal PSO posted in Sartingal injured him by inflicting Danda blow on his head and Kashmir Singh assaulted him with legs and fists. He fell on the ground and the above said persons who attacked, ran away from the spot. His family members and neighbourers brought him to home where he was given first aid an now he has come to hospital for treatment. 3. On the statement of injured, Report No:20 was entered in daily diary dated 14-1-2004 and injury form was filled. The injured thereafter for further treatment was referred to Jammu. On 23.1.2004 constable Shafqat Ahmed gave information from PCR Doda to Police Station Bhaderwah that injured Jia Lal who was admitted had died. On this case FIR No: 7/2004 u/s 302/34 RPC was registered in Police Station Bhaderwah and investigation was entrusted to SI who went to Medical College Jammu and investigation was commenced. The dead body of Jia Lal after postmortem was handed over to heirs. Thereafter documents including site plan were prepared. On this case FIR No: 7/2004 u/s 302/34 RPC was registered in Police Station Bhaderwah and investigation was entrusted to SI who went to Medical College Jammu and investigation was commenced. The dead body of Jia Lal after postmortem was handed over to heirs. Thereafter documents including site plan were prepared. The statements of prosecution witnesses u/s 161 Cr.P.C were recorded and as per the statements, Rattan Lal and Kashmir Singh alias Kirpa Ram came in the house of deceased Jia Lal on Lohri day and both the accused with common criminal intention to murder the deceased, locked family members of deceased inside the house. The deceased was taken outside near his house and was given beatings with dandas (Sticks) who received grievous injuries and thereafter witnesses brought the injured to home. The injured was taken to Bhaderwah hospital on next day and thereafter for further treatment was shifted to Medical College Jammu for treatment where he died on 23.01.2004. Accordingly FIR No.7/2004 u/s 302/34 RPC was registered. Both the accused persons were arrested and after investigation offences u/s 302, 342, 34 RPC were proved against accused persons. Thereafter challan against accused persons namely Rattan Lal and Kashmir Singh alias Kirpa Ram was presented in the Court of Munsiff Judicial Magistrate Ist Class Bhadwerwah and the same was committed to this Court for further trial. 4. After preliminary arguments, charges under Sections 302, 342, 34 RPC were framed against accused persons namely Rattan Lal and Kashmir Singh alias Kirpa Ram and accused pleaded not guilty to the charges and claimed to be tried. Prosecution in order to prove guilt against accused persons have examined prosecution witnesses namely Prem Nath, Neena Devi, Balwant Singh s/o Prem Nath, Shiv Ram, Karanvesh, Kishore Kumar, Mohan Lal, Madhu Lal s/o Saba Ram, Man Singh, Madhoo Lal s/o Bhagat Ram, Nitam Singh, Daulat Raj, Des Raj, Sanjay Kumar, Balwant Singh SPO, Om Kumar SGC, Kameshwar Sharma SPO, Mohd. Iqbal Patwari, Dr. Bashir Ahmed, Dr. L. D. Bhagat and Gian Chand Katoch. 5. Court below after conducting trial came to conclusion that prosecution proved its case beyond reasonable doubts and convicted the accused persons for offence under section 302/34 RPC and sentenced them for imprisonment for life. 6. We have heard learned counsel for appellants and respondent-State at length. We have also gone through the judgment of trial court. 7. 5. Court below after conducting trial came to conclusion that prosecution proved its case beyond reasonable doubts and convicted the accused persons for offence under section 302/34 RPC and sentenced them for imprisonment for life. 6. We have heard learned counsel for appellants and respondent-State at length. We have also gone through the judgment of trial court. 7. Before re-appreciating the evidence on record, the resume of statements of prosecution witnesses is as under:— PW-1 Prem Nath in examination-in-chief has deposed that he knows the accused. The name of Kashmir Singh in record is Kripa Ram, so Kashmir Singh is also Kripa Ram. Deceased Jia Lal, his son was killed by Kashmir Singh and Rattan Lal. On Lohari day near about one year he had gone to house of his son and when he was taking meal at 617 p.m, there was noise outside that Kashmir Singh and Rattan Lal took his son Jia Lal forcibly to their house. He came out and came to know that his son has been beaten by these two accused. He also went there and saw that the accused were dragging the accused towards their house and he had himself seen while the deceased was being dragged. He is having land with the house of accused and after beating his son they throw him in it. Man Singh, Shih Ram and Kishori lifted the deceased Jia Lal to his house. He also went to the house of his son Jia Lal. He asked the son as to what is the matter and he told that accused have beaten him with dandas (sticks). He had received injury on head. Then on next day he was brought to hospital. When he reached hospital the police had reached there. The statement of his son was recorded by police in the hospital and his son had put his signature on it. His son remained for 5/6 days in the hospital and then was referred to Jammu. He went to Jammu on Monday and his son died within 4/5 days and dead body was brought to home and last rites were performed. Police had recorded his statement after about 20/22 days. The clothes and dandas (sticks) were seized by the police and on these seizure memos his signatures were obtained. His statement was recorded twice by police. He went to Jammu on Monday and his son died within 4/5 days and dead body was brought to home and last rites were performed. Police had recorded his statement after about 20/22 days. The clothes and dandas (sticks) were seized by the police and on these seizure memos his signatures were obtained. His statement was recorded twice by police. The other statement was recorded in Police Station after 10/11 days of the first statement. On next statement the police in his presence seized the clothes which were given by Neena Devi wife of deceased and the police had kept in an envelop (Lifafa) and identifies the same. He identified his signatures on the seizure memo of clothes and admitted the contents of same. It is exhibited as EXPW-PN. On cross examination the witness stated that there are 50/60 houses in Kanser village and adjacent to the house of Jia Lal there are houses of Karanvesh and Balwant. Many people live in this village. PW Parvati is his wife. Neena Devi is his daughter-in-law. PW Balwant Singh and PW Shib Ram are his sons. PW Karnvesh is son of his cousin sister. PW Kishore Kumar is son of his brother-in-law. Mohan Lal is not related to him. When the occurrence had taken place on that night the injured was kept in his house and no food was taken by him. No treatment was given to him from any body and neither bandage was given to him. In the morning during sun rise, they reached in hospital and deceased remained in Bhaderwah hospital for about 5/6 days. When the deceased gained consciousness then police recorded his statement. During the days when the deceased remained in the hospital he used to talk and when he was discharged his condition was not good. The deceased was referred to Jammu and he also had went with him. When the deceased was brought in the hospital his (witness) statement was not recorded however statement of Jia Lal was recorded. His statement was recorded by police after 20/25 days. He has personal knowledge about this case. The words written in his statement u/s 161 Cr.P C, that he heard Kripa Ram alias Kashmir Singh and Rattan Lal with the intention to kill his son Jia Lal and had taken him to their house by giving severe beatings with dandas (sticks) and injured him seriously are correct. He has personal knowledge about this case. The words written in his statement u/s 161 Cr.P C, that he heard Kripa Ram alias Kashmir Singh and Rattan Lal with the intention to kill his son Jia Lal and had taken him to their house by giving severe beatings with dandas (sticks) and injured him seriously are correct. His statement that he was being taken by dragging, is correct. When police recorded his statement, he had told them. But he cannot say why police has not recorded this statement. The clothes which the police had seized were seized after 18/20 days. No mark was put on them, however he has no knowledge. The clothes were open and were not sealed. The clothes were packed in a bag (Thella) by police. The clothes which were produced in the court were not sealed. PW-3 Neena Devi has deposed in examination-in-chief that she knows the accused present in the court. The deceased was her husband. On 13th January 2004 on day of Lohri, Rattan Lal and Kirpa Ram told that they would come to their home for taking meal. One accused is his brother-in-law (Bahanoi) and the other is brother of his brother-in-law. When the accused entered inside the room they locked her and her children in one room and on their making noise neighbours came there and opened the door. Her brother-in-law (Dewar) also came on spot and he searched the accused. Her husband was taken by the accused in the moon light in her presence and she told to her Dewar as to where her husband has been taken. Her ‘Dewar’ brought her husband to home on his shoulders. Her ‘Dewar’ told to her that the accused were beating her husband and they had also thrown stones at her Dewar, but he was not injured. When her husband was brought home blood was oozing from his head which was got bandaged from the doctor as it was already night. On morning her husband was brought to Bhaderwah hospital and where doctors told that it is police case and he was treated after police came there. Her husband remained in Bhaderwah hospital for four days and the doctors told that the condition of the injured is serious, so he should be taken to Jammu hospital. On morning her husband was brought to Bhaderwah hospital and where doctors told that it is police case and he was treated after police came there. Her husband remained in Bhaderwah hospital for four days and the doctors told that the condition of the injured is serious, so he should be taken to Jammu hospital. Then her husband was taken to Jammu hospital where he remained under treatment for four days there and thereafter he died. She was also with her husband. The postmortem of her husband was conducted in Jammu hospital and after the postmortem the dead body was brought to Bhaderwah, where last rites were performed. She had given statement to police and police came after 13/14 days on spot. During investigation clothes of the deceased were seized. The seizure memo of shoe (Boot) bear his signature and it has been exhibited as EXPW-ND. The seizure memo of clothes also bear his signature, which has been already exhibited as EXPW BS. The seizure memo dated 17-02-2004 regarding clothes also bear his signature, which has already been exhibited as EXPW-PN. The clothes and shoe etc which the police had seized during investigation, are the same which were seized from spot. When her husband was in Bhaderwah hospital, he was able to talk during that period. The deceased had told to her that the accused have made his such condition. She had cried a lot when the accused took her husband from their house, but none could hear her. On cross examination the witness stated that her statement was recorded by police on 15 or 20th January 2004 at her home and after that statement no statement was recorded by Bhaderwah police. Naib Chand bandaged her husband. The houses of Karan Vesh, Balwant Singh (brother-in-law) and Prem Nath (father-in-law) are adjoining to her house. Karanvesh is not related to her. BMO Bhaderwah used to do treatment of the injured in the Bhaderwah hospital. When the condition of the injured deteriorated he was directed to be taken to Jammu. She had given this statement in police that deceased had told her that accused have made his such condition, however these words are not written in her statement recorded by police. She has no knowledge as to where her husband was taken by the accused and what they did with him, however he was beaten before her in the home. She had given this statement in police that deceased had told her that accused have made his such condition, however these words are not written in her statement recorded by police. She has no knowledge as to where her husband was taken by the accused and what they did with him, however he was beaten before her in the home. She had told this to police that in the Kitchen the accused had beaten the deceased, however it is not written in her statement u/s 161 Cr.P.C. PW Parvati is her mother-in-law. PW Shib Ram is her Dewar and Kishore Kumar is her relative in relation. Mohan Lal Namberdar is not related to her. When the accused had come in their house at that time she, her mother-in-law, children and husband were in the Kitchen and no other persons was there besides them. PW-4 Balwant Singh s/o Prem Nath has deposed in examination-in-chief that he knows the accused. He also knew deceased Jia Lal, who was his brother. On 13th January 2004 on the day of Lohari, at 7.30 PM he had called his father Prem Nath and Mama Des Raj for meal in his house. While taking meal, his father said that he does not take meat. So he told his wife to bring ghee. When she went to bring ghee she heard noise coming from down side. Pushpa Devi his sister was calling that brother Jia Lal has been beaten by Rattan Lal and Kashmir Singh. His house and house of Jia Lal is common, but they prepare their own food and the house has been partitioned. He, his father and many people came out. The wife of Jia Lal and his mother Parvati told that the accused have taken Jia Lal to their house. They all went in search of deceased towards the down side and saw that Man Singh, Shib Ram and Kishori were bringing the deceased while lifting and he was still alive and blood was oozing from his head. His mother and wife of deceased were present there. The accused might have invited deceased Jia Lal at their house for taking meal. The deceased was kept in injured condition in the house and in the morning he was brought to Bhaderwah hospital. He was alive and police had also recorded his statement in his presence. His mother and wife of deceased were present there. The accused might have invited deceased Jia Lal at their house for taking meal. The deceased was kept in injured condition in the house and in the morning he was brought to Bhaderwah hospital. He was alive and police had also recorded his statement in his presence. The deceased had told to police that the accused have beaten him. He remained in Bhaderwah hospital for 2/3days and was then taken to Medical College and remained under treatment there for three days and then died. The police kept the dead body in their custody, prepared some papers and his signatures were taken. The Bhaderwah police had not reached there, due to snowfall, so Jammu police had handed over the dead body to them and it was brought in an Ambulance to Bhaderwah hospital and on next day it was cremated. He sign in Urdu. The blood stained clothes were washed by mother of the deceased and police had seized the same and seizure memo was prepared which bear his signature and the contents of the same are true and exhibited as EXPW BS. Neena Devi, wife of deceased had told that the shoes of the accused have remained there and were given to police. He has seen the clothes as per seizure memo dated 6.2.2004, which were same seized by police from spot. In his presence the police had seized dandas (sticks) and shoes from the spot. On cross examination the witness stated that there are 50/60 houses in Kanser village. The houses of Des Raj, Karan Vesh and Jigru etc are adjoining to his house. They had come from Kanser in the morning at 6/6.30, 0 clock and reached in the hospital at 7/7.15, 0 clock. Police had come in Kanser village after death of the deceased. His statement was recorded by police after 20/22 days and during these days he had not discussed about the same with any body. The clay was also seized after 20/22 days by police. Clothes were with him and the dandas (sticks) were brought from the house of the accused. When the police had seized the clothes he had not put any mark on them. He has not seen the occurrence with his own eyes and was called by deceased. Pushpa Devi wife of Kripa Ram is his real sister. Clothes were with him and the dandas (sticks) were brought from the house of the accused. When the police had seized the clothes he had not put any mark on them. He has not seen the occurrence with his own eyes and was called by deceased. Pushpa Devi wife of Kripa Ram is his real sister. PW Parvati is his mother, Neena Devi is his sister-in-law (Bhabi) and Shiv Ram is his brother. PWs Karanvesh and Kishore Kumar are his counsin brothers. He has no relation with PW Mohan Lal and PW Madhu Lal is his Mama. PW-5 Shib Ram has deposed in examination-in-chief that he knows the accused persons present in the court. On 13th January 2004 he was in his house and at about 7/7.30 p.m heard noise from the house of Jia Lal. His Bhabi Neena Devi told to him that the accused have taken Jia lal from inside the house to some where. In the meantime Jia Lal called, ‘bachao’. When he reached there he saw accused were beating Jia Lal with dandas (sticks). The deceased was lying on the ground and his face was towards sky. When he tried to intervene, the accused also attacked him and thereafter they brought the deceased to home by lifting. The accused thereafter fled. The deceased had received injury on left side of head and was brought to Bhaderwah hospital in the morning. Thereafter police came there and recorded his statement. After 3/4 days the deceased was referred to Medical College where on 23-01-2004 he died. After post mortem at Jammu the deceased was brought back to Bhaderwah and on 26th January he was cremated. After death of deceased police came in Kansar village and seized one Jacket, two shoes of different sizes and pent. He admitted the contents of seizure memo dated 6.2.2004, which was prepared regarding Jacket and Pent and identified his signature which has already been exhibited as EXPW-BS. He identified the seized articles in the Court which were seized in his presence. On cross examination the witness stated that his father is having two wives. His statement was recorded by police at home after 15/20 days of the death of the deceased. He had not given his statement to any body from the date of occurrence till recording of his statement by police. On cross examination the witness stated that his father is having two wives. His statement was recorded by police at home after 15/20 days of the death of the deceased. He had not given his statement to any body from the date of occurrence till recording of his statement by police. On hearing noise, the people of nearby houses had come to their house at that time. There are houses of Karanvesh, Balwant Singh, Des Raj and Madhu Lal etc near their house. The noise was coming from the place at a distance of 200/300 feet from his house. There is no house between his house and the place of occurrence. In this area there are houses of Namberdar and Chowkidar. The house of Jia Lal is at a distance of 15/20 feet from his house. The name of wife of accused Kashmir Singh is Pushpa Devi. He does not remember on which date police had come there, however police came after 15/20 days. When the injured was brought at home they had only folded dupatta around his injury and no medicine was given to him. The words written in his statement u/s 161 Cr.P.C dated 6.2.2004 that both the accused also tried to kill him but to the intervention by interveners he had not received any injury, the police had written this statement wrong. He had received injury on left shoulder. This injury was inflicted by accused Kashmir Singh. Both the accused had tried to kill him but the injury was inflicted by accused Kashmir Singh with his stick. He had told police that he has received injury from the stick of accused Kashmir Singh however he cannot say as to why the same has not been written in his statement u/s 161 Cr.P.C recorded by police. The deceased remain in the house of his Bhabi from the night when he received injury till morning 7.30 while taking to hospital. There is population of 300 I400 people in village Kansar. At night 5/6 people had come on spot and nobody else had come there. Clothes, Jacket and dandas (sticks) were seized by police on the day when they had come on spot. On the day when his statement was recorded by police prior to that day he had not inquired from any body and neither he had told to any body regarding this incident. Clothes, Jacket and dandas (sticks) were seized by police on the day when they had come on spot. On the day when his statement was recorded by police prior to that day he had not inquired from any body and neither he had told to any body regarding this incident. PW-6 Karan Vesh has deposed in examination in chief that he knows the accused persons present in the court. On 13-01-2004, on Lohari day he was taking meal in his house and Parvati was in her house and called him to open the door. He went to the house of Parvati by leaving half meal. He opened the door from outside; he was told nothing and he also asked nothing from them. Then he came back to his house for taking meal. When he opened the door he saw Parvati, Neena Devi and two children there. He had not seen the accused there and neither he had seen the deceased there. Thereafter, in the morning he came to know that all the people are taking Jia Lal to hospital. He also went with them. When they had seen Jia Lal he was in injured condition and was not talking. Towel and Dupatta was folded on his head, so he had not seen the injuries. Neena Devi had told to him that the accused have beaten deceased, who is injured and so he is being taken to hospital. Jia Lal from there was taken to Jammu where he died. Police had come after about 20/22 days there and had made inquiry from him and obtained his signatures on some papers and the contents of the papers were not read to him. Neena Devi had not given any Boot/shoes etc. to police. He only identifies his signature on the contents of seizure memo of shoe dated 6.2.2004 marked ‘A’. He identifies his signatures on supurdnama of ring dated 6.2.2004 marked ‘B’. On cross examination the witness stated that there are 60/70 houses in Kansar village. Police had recorded his statement to the extent of door. Parvati had called him at 6/7 P.M. There is no other house between his house and house of parvati. He has no personal knowledge as to whether the accused had come to the house of deceased on said day. Police had recorded his statement to the extent of door. Parvati had called him at 6/7 P.M. There is no other house between his house and house of parvati. He has no personal knowledge as to whether the accused had come to the house of deceased on said day. The words written in his statement u/s 161 Cr.P C that, he came to know that Kripa Ram alias Kashmir Singh, Rattan Lal sons of Sant Ram of the said village had come on invitation being relatives, is wrong. The words written in statement u/s 161 Cr.P.C that, there was heated exchange of words at the house of Jia Lal and both caught hold of Jia Lal and started beating him, is wrong. After taking meal he had not gone to the house of Parvati. The words written in his statement u/s 161 Cr.P.C that, he took meal in a hurry and again went in the house of Jia Lal and till then Man Singh, Shih Ram and Kishori Lal of same village had lifted and brought the deceased Jia Lal in injured condition, is wrong. PW-7 Kishore Kumar has deposed in examination-in chief that he knows the accused persons present in the court. On the day of Lohri in the month of January, 2004 he was in his house at 7/7.30 PM and came out for urinal, when heard noise coming from the house of the accused that “they have killed”, “they have killed”, ( mar diya, mar diya). When he reached on spot he saw that the deceased was lying on the ground and his face was towards Sky. There was injury in the head of Jia Lal. At that time Shib Ram, Balwant Singh and Prem Nath were there. He cannot say how Jia Lal had received injury. The sound of ‘save’, ‘save’ (bachao, bachao) was of ladies. Both the accused were present on spot. He had not asked injured Jia Lal as to how he was injured. Accused had told nothing and they were not talking anything. He was frightened and lifted Jia Lal and brought him to home. On next day Jia Lal was brought to Bhaderwah hospital. Police had not come there. Police came after 15/16 days and then his statement was recorded. He had not inquired about the death of the deceased in the village. He has no knowledge about the quarrel. He was frightened and lifted Jia Lal and brought him to home. On next day Jia Lal was brought to Bhaderwah hospital. Police had not come there. Police came after 15/16 days and then his statement was recorded. He had not inquired about the death of the deceased in the village. He has no knowledge about the quarrel. It was dark and he has not seen as to what was in the hands of the accused. On hearing noise only he had come on spot and other village people had not come. The witness was declared hostile at the request of PP and on cross examination by PP the witness stated that in the house of deceased there are two rooms, one Kitchen and one cow shed. The name of father of deceased is Prem Nath and his mother’s name is Parvati. Prem Nath father of the deceased was also at home. When the injured was being brought back by lifting at that time Man Singh and Shib Ram were also with them. Adjoining to the house of Jia Lal there are houses of Karanvesh and Balwant. Jia Lal and Balwant used to live in one house and now they are living separately. Parvati, Prem Nath, Man Singh and Balwant have also knowledge about the occurrence. Neena Devi wife of deceased have complete knowledge about occurrence. When he reached on spot he was also frightened that the accused might kill him also. On cross examination by the defence counsel the witness stated that police had not inquired from him. He had told police that he has no knowledge that who has killed deceased and injured him. When he went on spot at that time it was dark and it was difficult to identify a person. The house near to the place of occurrence is that of accused. There are 50/60 houses in Kansar village. The deceased was kept for whole night in his house. He has no knowledge as to whether any treatment was given to him at night or not and when deceased was brought to hospital in the morning. The deceased remained in Bhaderwah hospital for 5/6 days. PW-8 Mohan Lal has deposed in examination in chief that he knows the accused persons present in the court. He has no knowledge about the occurrence which took place in the year 2004. The deceased remained in Bhaderwah hospital for 5/6 days. PW-8 Mohan Lal has deposed in examination in chief that he knows the accused persons present in the court. He has no knowledge about the occurrence which took place in the year 2004. His house is at a distance of about one kilometer from the house of accused. Police had come in Kansar village in the house of Rattan Lal and his father in-law whose name is Kashmir Singh. They had called us and the seized clothes were shown. Those were one Jacket, pent and two shoes of one foot. which were seized. Besides this one danda (stick) was also seized. Seizure memo was prepared and he put his signature on it. No mark was put by police on seizure and in his presence the seized articles were kept on supurdnama of some one. The contents of supurdnama are wrong, however he identified his signature, which is marked as Mark ML. He has seen the seized clothes, shoes, dandas (sticks) which were seized, he identified the same, however the danda (stick) was one. The other danda (stick) which is shown to him he cannot say from where it has been brought. Police were saying that these clothes are of deceased Jia Lal, however he had not seen such type of clothes worn by deceased. He cannot say how deceased Jia Lal had died. On cross examination the witness stated that PW Prem Nath is father of the deceased. Parvati, Neena Devi and Balwant Singh are near relatives of the deceased. There are many houses adjacent to the house of the deceased, however are at a distance of about 50/50 feet. He is Namberdar of Kansar village for the last 20/25 years. PW-9 Madhu Lal S/o Sobha Ram has deposed in examination-in-chief that he knows the accused. The occurrence is of 2/3 years ago and he had heard that there was quarrel of Jia Lal, Rattan Lal and Kripa Ram. He had not heard about the death of any body. Police had come in the village and they were called. The police had brought one Jacket. one shoe/Boot, one pant and one danda/stick with them. He further stated that the shoes were two however were of one foot. Police had prepared seizure memo on which he had put his signature. He had not heard about the death of any body. Police had come in the village and they were called. The police had brought one Jacket. one shoe/Boot, one pant and one danda/stick with them. He further stated that the shoes were two however were of one foot. Police had prepared seizure memo on which he had put his signature. He has seen seizure memo exhibited as EXPW-BS, which is correct and identified his signatures on it. The contents of the seizure memo of ring are wrong. The ring was not seen by him, however he identifies his signature, it has already been marked as mark ML. To the extent of signature of Madhu Lal, mark ML/I has been put. He has heard about Jia Lal that he had died. He is chowkidar of that village and when any person dies there they register his name in the register. On cross examination the witness stated that in his presence clothes, Jacket and dandas/sticks were not produced before police by any body. The clothes were clean and no blood stain was on them. The contents of seizure memo EXPW-BS is wrong and Neena Devi had not produced clothes, jacket etc. in his presence. There are about 300 houses in Kansar village. PW-10 Man Singh has deposed in examination-in chief that he knows the accused persons present in the court. On 13th January 2004, day of Lohri, he had gone to home and from home he went to in-laws house in Kansar at 7.30 PM. He heard noise when reached halfway. People were on roof of in-laws house and he asked from the wife of Jia Lal namely Neena Devi she told that Jia Lal has been taken by the accused to their house and accused had beaten Jia Lal. She told him to go there and bring Jia Lal back. When he went there Jia Lal was lying unconscious on the ground and he was having injury on head. He had gone alone there. Prior to him Shiv Ram and Kishore Kumar had gone there. Then he brought Jia Lal in injured condition to home at 7.40 P.M and Jia Lal was alive and had regained consciousness. Jia Lal was kept home at night and on next day he was taken to Bhaderwah hospital. He had gone alone there. Prior to him Shiv Ram and Kishore Kumar had gone there. Then he brought Jia Lal in injured condition to home at 7.40 P.M and Jia Lal was alive and had regained consciousness. Jia Lal was kept home at night and on next day he was taken to Bhaderwah hospital. He also came along with him and remained 7/8 days in the hospital and thereafter Jia Lal was taken to Jammu where he died. The dead body of deceased Jia lal was brought from Jammu to Bhaderwah and on next day last rites were performed. Police had not come on spot. His statement was recorded by police. Accused Rattan Lal, Kripa Ram and their wives were on spot. On cross examination the witness stated that he was recruited as SPO in the year 1998 and remained with 25/RR for three years. Thereafter he remained as PSO with Sanjay Gupta resident of Bhaderwah. On 13th January 2004 he had not put any report in Roznamcha when he had gone to his home. They do not put report in Roznamcha at the time of going on leave but they took leave from the person with whom they are PSO. He had left Bhaderwah for Kansar at 4.30/5, o clock. After six days of death of the deceased his statement was recorded by police. The distance between Kansar and Bhaderwah is 6/7 Kilometer. He had not remained with the injured for the night. On the next day they had reached at Hospital at 7 am. The deceased used to talk and move properly. He has no personal knowledge about the occurrence. On the night of occurrence it was dark and in the dark a person is visible from a distance of 1-2 feet. The deceased Jia Lal was his brother-in-law. There are 72 houses in Kansar village. The population of this village is 500. PW-11 Madhoo Lal S/o Bhagat Ram has deposed in examination-in-chief that accused persons present in the court are known to him. He also knew deceased Jia Lal. Accused persons gave beating to Jia Lal in Kansar village and thereafter he died in Medical College, Jammu during treatment. Police came on spot and prepared papers regarding dead body and thereafter was handed over to the heirs of deceased. Police also prepared some other papers but his signatures were obtained in Kansar village. He also knew deceased Jia Lal. Accused persons gave beating to Jia Lal in Kansar village and thereafter he died in Medical College, Jammu during treatment. Police came on spot and prepared papers regarding dead body and thereafter was handed over to the heirs of deceased. Police also prepared some other papers but his signatures were obtained in Kansar village. On 20th Feburary, 2004 accused persons confessed their guilt in the Police Station and Police prepared papers in this regard and his signatures were obtained. The signatures of accused persons were also obtained. He admitted the contents of disclosure memos with regard to disclosure made by accused Kashmir Singh and accused Rattan Lal. The disclosure memo of Kashmir Singh is exhibited as EXPW-13 and disclosure of Rattan Lal is already exhibited as EXPW-DR. The accused persons were brought in Kansar village on 22 February, 2004 and on the disclosure of accused ‘Danda’ was recovered. The Police at that time had prepared papers and he signed on the same as witness. The accused persons also signed on the same. He saw ‘Danda’ in the court today. On cross examination, the witness stated that the deceased was his nephew. Deceased Jia Lal remained in Bhaderwah hospital for 4/5 days for treatment. Thereafter deceased remained admitted in Jammu hospital for 4/5 days. He also went to see deceased in Jammu hospital. The sister of accused persons is the wife of his brother. Accused persons gave their statements in Police custody. He has no personal knowledge about the occurrence. He cannot say how Jia Lal deceased died. The ‘Dandas’ are of common types which were given by the accused to the police. Accused gave the statements in Urdu. PW-12 Nitam Singh after satisfaction by court that he is competent to give statement has deposed in examination-in-chief that he reads in 10th class. He knows the accused persons present in the court. The deceased was his father. Six years ago on Lohri festival at 8/9, O’ clock, he, his grand father, grand mother, mother and brothers were taking meal at home. His father was also taking meal with them. The accused Rattan lal and Kripa Ram present in the court came there. His mother told them to take meal. They replied nothing and dragged his father outside and started beating him. The witness further stated that they started crying. His father was also taking meal with them. The accused Rattan lal and Kripa Ram present in the court came there. His mother told them to take meal. They replied nothing and dragged his father outside and started beating him. The witness further stated that they started crying. The accused locked them in a room. They took his father with them. They shouted and their neighbourer Karanvesh came there and he opened the door and they came out. They went towards fields where accused were beating his father with dandas (sticks). The injured was taken to Jammu and died after four days. The dead body was brought to home and last rites were performed. The injuries were caused with dandas (sticks) on head. The accused are brothers in relation. When the deceased was lifted from the field at that time blood was oozing to him. He was reading in 4th class at that time. On cross examination stated that police recorded his statement after 20/25 days. His house is having two rooms. He has himself seen the occurrence. In his statement u/s 161 Cr.P.C. the words written that “after some time his father was brought at home by Man Singh, Shib Ram and Kishore in injured condition, he had seen blood on head. He heard that both the accused Rattan Lal and Kashmir Singh alias Kripa Ram had taken his father near their house and had injured him with dandas (sticks) on head”, is wrongly written as he has himself seen the occurrence. When his father was brought by Man Singh, Shib Ram and Kishore in injured condition to home at that time the door was open. This door had opened after 15/20 minutes and was opened by Karanvesh. The house of Karan vesh is at a distance and sound can go from his house to the house of Karanvesh and there is no house in between their houses. His father remained under treatment for 3-4 days in Bhaderwah hospital. He had gone to hospital to see his father and thereafter his father was taken to Jammu and he remained in Jammu hospital for 4/5 days. Pw Prem Nath is his grand-father and PW Parvati is his grand mother. Neena Devi is his mother. Balwant Singh, Shib Ram and Kishore Kumar are his uncles. Karanvesh is his neighbourer. Mohan Lal is not related to him. Pw Prem Nath is his grand-father and PW Parvati is his grand mother. Neena Devi is his mother. Balwant Singh, Shib Ram and Kishore Kumar are his uncles. Karanvesh is his neighbourer. Mohan Lal is not related to him. PW-13 Dolat Raj has deposed in examination-in- chief that he knows the accused persons present in the court. He also knew deceased Jia Lal. The occurrence took place on day of Lohri in the year 2004. Police had prepared a seizure memo of one chadder (dupatta) and one shirt in his presence. He admitted the contents of seizure memo EXPW-PN which bears his signature. He has no knowledge how Jia Lal died as he resides far away from his house. The Chadder (dupatta) and shirt brought in the court are the same which were seized by the police in his presence. On cross examination the witness stated that at the time of preparation of seizure memo the widow of deceased and son of deceased were present on spot. His statement was not recorded by police. His statement recorded by police u/s 161 Cr.P.C. in his name, is wrong. PW-14 Des Raj has deposed in examination -in-chief that he knows the accused persons present in the court. He also knew deceased Jia Lal. The deceased was his nephew (Bhanja). Accused Kripa Ram is married with the daughter of his sister. The deceased was injured in quarrel and he died due to these injuries. Police had come on spot in Kansar and he was called by police there. Police had also inquired from him. Dandas (sticks) etc. were also seized by police and papers were also prepared and his signatures were taken. Namberdar and accused were also there. Both the accused had brought dandas (sticks) and given to police. The signatures of accused were also taken. He had put his signatures in English. He has heard the contents of the disclosure memo of accused Rattan lal, which is correct and bear his signature and same is exhibited as EXPW-DR. Disclosure memo of accused Kashmir Singh does not bear his signatures. On cross examination the witness stated that police came on spot on 22nd February 2004. The 1/0 had come on spot. The accused had made disclosure in Gaddi language, but what words were spoken in Gaddi language he does not remember. Disclosure memo of accused Kashmir Singh does not bear his signatures. On cross examination the witness stated that police came on spot on 22nd February 2004. The 1/0 had come on spot. The accused had made disclosure in Gaddi language, but what words were spoken in Gaddi language he does not remember. PW-15 Sanjay Kumar has deposed in examination in-chief that accused persons present in the court are known to him. His uncle (Mama) Jia Lal died and he received the dead body and in this regard papers were prepared and he put his signatures on the same. He admitted the contents and identified his signatures on the documents i.e. Seizure memo of dead body and receipt of dead body which are exhibited as EXPWSK and EXPW-SK I. He has no knowledge how deceased died. On cross examination the witness stated that Police did not record his statement. PW-17 Balwant Singh SPO has deposed in examination-in-chief that he knows the accused persons present in the court. He had arrested accused Kashmir Singh in Tarantaran Punjab on 15-2-2004. Sub Inspector Shiv Krishan Sharma and Tilak Raj SPO were with him. Arrest papers were prepared in Tarantaran Punjab by Sub Inspector Shiv Krishan. The arrest memo bear his signatures and he admitted the contents of same to be correct, which is exhibited as EXPW-BS. He admitted the contents and identified his signatures on search memo, which is exhibited as EXPW-BS-1. He gave statement to police in this regard. On cross examination the witness stated that he does not know the accused personally. At the time of arrest no one was with the accused and no identification was got conducted in his presence. He was arrested from a sweat shop in Tarantaran. PW-19 Om Kumar SGC has deposed in examination-in-chief that he knows the accused persons present in the court. In the year 2004 he was posted in Police Station Bhaderwah. On 15-02-2004 Gian Chand SI asked him to accompany him and 4I5 persons went towards Sartingal. When they reached near Power House SHO told to arrest Rattan Lal. The accused was arrested from the way and his search was conducted. During search one Purse and I Card were found. Search memo was prepared which bear his signatures in English and contents of same are true, which is already exhibited as EXPW- KSI. Thereafter they came back to Police Station. The accused was arrested from the way and his search was conducted. During search one Purse and I Card were found. Search memo was prepared which bear his signatures in English and contents of same are true, which is already exhibited as EXPW- KSI. Thereafter they came back to Police Station. On 22-02-2004 they went to Kansar village along with accused Rattan Lal and two dandas (sticks) were recovered from a heap of wood. The same were seized and brought in the Police Station and seizure memo was prepared, the memo of recovery of weapon dandas (sticks) is correct and exhibited as EXPW-OK. He has seen the dandas (sticks) in the open court which are the same. On cross examination the witness deposed that the place from where the dandas (sticks) were recovered and 19/20 other dandas (sticks) were also there and same were recovered after about two months of the date of occurrence. The dandas (sticks) which were recovered by police were not having any blood stains and were of common type available in every house. PW-20 Kameshwar Sharma SPO has deposed in examination-in-chief that accused Rattan Lal is known to him. He was posted as SPO in Police Station Bhaderwah in the year 2004. On 15-2-2004 he had arrested accused Rattan Lal accompanied with SI Gian Chand and Om Kumar at Sartingal. Arrest memo was prepared. He admitted the contents and identifies his signature on the arrest memo and seizure memo which are exhibited as EXPW-KS and EXPW-KS1. Then Rattan Lal was brought to Police Station Bhaderwah. On cross examination the witness stated that accused was arrested at some distance from the bazaar and besides police some civilian were there. PW-21 Mohd Iqbal, Patwari, has deposed in examination-in-chief that he was posted in halqa Manthla in the year 2004. He had prepared site plan of place of occurrence dated 09-02-2004 which is correct and bear his signature, it is exhibited as EXPW-Ml. He had prepared the site plan as asked by the police while visiting at the place of occurrence. On cross examination the witness stated that he has no knowledge about the place of occurrence. He had prepared site plan at the Nishan dehi of police. At that time Prem Nath and police personnel were with him. From the place of occurrence village Kansar is at a distance of 20/25 feet. On cross examination the witness stated that he has no knowledge about the place of occurrence. He had prepared site plan at the Nishan dehi of police. At that time Prem Nath and police personnel were with him. From the place of occurrence village Kansar is at a distance of 20/25 feet. Kansar village is situated at one place and about 50/60 houses are there. PW-25 Dr. Bashir Ahmed CMO Doda has deposed in examination-in-chief that on 14-01-2004 the injured namely Jia Lal s/o Prem Nath R/0 kanser was admitted in Bhaderwah hospital for treatment and he was brought to hospital by his relatives. The injured had been assaulted on 13.1.2004 and he was subjected to X ray examination which revealed that injured was having depressed fracture on parietal bone and the patient was thereafter referred to GMC hospital Jammu for further treatment. He admitted the contents and identified his signatures on the certificate issued by him which is exhibited as EXPW-BA. The weapon of offence had been shown to him at the time of examining the patient and in his opinion injuries inflicted on the patient could be inflicted by this weapon. The certificate that the injury inflicted on the person of patient could be caused by the use of the weapon of offence has been issued by him and he admitted the contents and identified his signatures on this certificate which is exhibited as EXPW-BA-1. In his cross examination the witness deposed that certificate EXPW-BA-I has been issued by him on 28.2.2004 after the lapse of about one month and 15 days. The weapon of offence which have been shown to him was not having any blood stain. He does not remember for how long patient had been under his treatment at Bhaderwah and who had treated the patient during his admission in Bhaderwah hospital. The time of assault has not been stated in the certificate. The injuries on the person of injured could be caused due to fall on hard surface. The injured could have survived, if given proper treatment in proper institute. PW-26 Dr. L.D. Bhagat has deposed in examination in-chief that on 24.1.2004 he was posted as Demonstrator Forensic Medicine Government Medical College Jammu. He had conducted postmortem examination on the body of Jia Lal s/o Prem Nath R/0 Kanser Bhaderwah with alleged history of assault on 13.1.2004 at village Kansar Bhaderwah. PW-26 Dr. L.D. Bhagat has deposed in examination in-chief that on 24.1.2004 he was posted as Demonstrator Forensic Medicine Government Medical College Jammu. He had conducted postmortem examination on the body of Jia Lal s/o Prem Nath R/0 Kanser Bhaderwah with alleged history of assault on 13.1.2004 at village Kansar Bhaderwah. He was admitted in SDH Bhaderwah on 13-1-2004 and was thereafter referred to Govt. medical College Jammu on 18.1.04 under MLC No: 345. He died on 23.1.2004 at 7.30 a.m. Deceased had been identified by Balwant Singh brother of the deceased and Sanjay Kumar nephew of the deceased. The authority for autopsy was given by Sub Inspector Gian Chand. On examination the following injuries were found on the body of the deceased; External Injuries: 1. Infected lacerated wound over right parietal region of the scalp measuring 3 cm x 5 cm by bone deep with slugging and granulation tissues over margins of the wound. Internal Injuries: 1. Massive bruising under the scalp present under the injury No:1, fracture of right parietal bone. The fractured piece of bone measuring 3 em X 2.5 em rounded in shape present inside the craneal cavity with laceration of the meninges and brain matter of right cerebral hemisphere, sub dural and sub arachnoid hemorrhages present under the fractured bone. In his opinion the death has been caused by craneocerebral injury with heavy blunt object. The injuries were ante mortem and about_10 days duration. The report is in his handwriting and bears his seal and signature. Its contents are true and is exhibited as EXPW-LD. In cross examination conducted by the counsel for accused the witness has deposed that patient has remained admitted in hospital Bhaderwah from 14.1.2004 to 18.1.2004. The post mortem had been conducted on deceased in GMC hospital Jammu. He had opened whole body of the deceased at the time of conducting the postmortem. If proper treatment had been given to deceased from the date of inflicting of injuries up to the date of his death there had been chances of his survival. The death of the deceased had not been caused by infected wound but had been caused by the craneocerebral injury which was secondarily infected. The primruy cause of death was craneocereoral injury and secondruy cause of death was infected wound. The postmortem was conducted on deceased at 1.30 p.m. He had conducted the postmortem along with other intern doctors. The death of the deceased had not been caused by infected wound but had been caused by the craneocerebral injury which was secondarily infected. The primruy cause of death was craneocereoral injury and secondruy cause of death was infected wound. The postmortem was conducted on deceased at 1.30 p.m. He had conducted the postmortem along with other intern doctors. Death has been caused at 7.30 a.m on 23.1.2004. Stomach of the deceased contain about 100 ml fluid. Rigor mortis was present all over the body. It appears about 12 hours after the death and remain up to about 36 hours and then it disappears. Part of the head have got very stiff and head bones and this type of injuries cannot be caused by the light weight weapon and injuries mentioned in EXPW-LD can stain the clothes with blood. PW-28 Gian Chand Katoch, retired Sub Inspector, has deposed in examination in chief that in the year 2004 he was posted as SI in Police Station Bhaderwah. He had investigated FIR No: 7/2004. The initial investigation was conducted by PSI Anzar Ahmed. He had seized the dead body of the deceased from Jammu and handed over to heirs. After 10/15 days of the occurrence he went on spot for investigation. He prepared site plan on spot which is correct and is exhibited as EXPW-GC. The recovery memo of weapon of offence was also prepared by him which bear his signature and is exhibited as EXPW-GC-1. The report of postmortem had been obtained by him. The search memo prepared has already been exhibited as EXPW-KSI. The arrest memo of accused Rattan Lal is also prepared by him, which bear his signature and has already been exhibited as EXPW-KS. The disclosure memos of accused Kashmir Singh and accused Rattan Lal are in his handwriting and bear his signature and has already been exhibited as EXPW-II and EXPW-DR. The seizure memos of shoe and clothes are also in his handwriting and bear his signatures, it has already been exhibited as EXPW-ND and EXPW-BS. Seizure memo of clothes dated 17-02-2004 is also in his hand and bear his signature and has already been exhibited as EXPW-PN. The supurdnama memo of ring is in his handwriting, bears his signature, and it is exhibited as EXPW-GC-II. The statements of witnesses were recorded on spot. Seizure memo of clothes dated 17-02-2004 is also in his hand and bear his signature and has already been exhibited as EXPW-PN. The supurdnama memo of ring is in his handwriting, bears his signature, and it is exhibited as EXPW-GC-II. The statements of witnesses were recorded on spot. The memo of recovery of weapon of offence dated 22-02-2004 is also in his hand, it bears his signature and has already been exhibited as EXPW-OK. The statements of Prem Nath, Neena Devi, Parvati, Balwant Singh, Shih Ram, Karan Vesh, Kishore Kumar, Mohan Lal, Madhu Lal, Man Singh, Nitam, Dolat Raj, Des Raj, Sanjay Kumar, Mahinder Singh, Tilak Raj, Om Kumar, Mohd Iqbal, Shiv Krishan, Anzar Ahmed and Shabir Ahmed Butt were recorded. As per the investigation conducted by him offences under sections 302, 342, 34 RPC were proved against the accused. On cross examination the witness deposed that on next day MO gave information that one person in injured condition is admitted in the hospital. The distance between Police Station and Court is of few seconds. The FIR was lodged on 23-01-2004. The FIR was lodged after 10 days of the occurrence and on the same day investigation was handed over to him. He cannot say whether from 13-01-2004 to 23-01-2004 any FIR was lodged in the Police Station. The statement of Sanjay Kumar and Mahinder Singh was recorded on 24-01-2004 and Prem Nath, Parvati Devi, Neena Devi, Balwant singh, Shib Ram, Karan Vesh, Kishore Kumar, Mohan Lal and Madhu Lal on 6-2-2004. He has served in the Police Department for 38 years and has also conducted investigation in cases under section 302 RPC. The above witnesses are relatives of the deceased. There are 50/60 houses in Kansar village. Namberdar and Chowkidar were also called on spot and their statements were recorded. He cannot say whether Namberdar and Chwokidar are relatives of the deceased or not. The report was entered in the roznamcha on 14-01-2004. He had started his investigation from Roznamcha dated 14-01-2004 vide rappart No:20 and according to his investigation quarrel took place inside the house. The roznamcha rappart No: 20 dated 14-01-2004 as per his investigation has been proved wrong and the statement of the injured has also been proved wrong. He had prepared site plan during investigation and the place of occurrence has been shown in the site plan. The roznamcha rappart No: 20 dated 14-01-2004 as per his investigation has been proved wrong and the statement of the injured has also been proved wrong. He had prepared site plan during investigation and the place of occurrence has been shown in the site plan. The occurrence had taken place inside the room and outside. The quarrel has taken place inside the room and the shoes etc. were recovered from there. The date of arrest of accused is 15-02-2004. From 15-02-2004 to 20-02-2004 the accused remained in his investigation and during that period accused had not made any disclosure. He has no knowledge as to in which language the accused had made disclosure, however disclosure was made in Urdu. The disclosure is written in the language in which it is made. Kansar village is at a distance of 10 kms from Police Station and it is written in the FIR. This is the evidence of prosecution. Statements of accused persons namely Rattan Lal and Kashmir Singh alias Kirpa Ram under section 342 Cr.P.C were recorded and they denied the incriminating circumstances appearing against them in the prosecution evidence. Accused persons further stated in their statements that they have no knowledge with regard to the statements made by prosecution witnesses namely Prem Nath, Balwant Singh, Mohan Lal, Mohd Iqbal, Man Singh, Om Kumar, Dr. L.D.Bhagat, Dr. Bashir Ahmed CMO. The prosecution witnesses namely Karanvesh, Shiv Ram, Man Singh, Daulat Ram, Neena Devi, Neetam Singh, Madho Lal have made wrong statements. The prosecution witnesses namely Prem Nath, Neena Devi, Balwant Singh, Shiv Ram, Neetan Singh are close relatives of deceased and have falsely stated against them on the basis of enemity. PW Gian Chand SI is the investigating officer of the case and have made a false case against them. Accused persons also stated that nothing was seized from their possession and they have not given any disclosure statement. The prosecution witnesses are interested witnesses and have involved them in a false case. The accused persons did not examine any witness in defence. 8. The learned trial Court, on appreciating the entire evidence on record and relying upon testimony of eye witnesses as well as other witnesses and incriminating circumstances i.e. recovery of ‘Dandas’, seizures and other documents on which the prosecution is relying, convicted the accused persons namely Rattan Lal and Kashmir Singh alias Kirpa Ram. 8. The learned trial Court, on appreciating the entire evidence on record and relying upon testimony of eye witnesses as well as other witnesses and incriminating circumstances i.e. recovery of ‘Dandas’, seizures and other documents on which the prosecution is relying, convicted the accused persons namely Rattan Lal and Kashmir Singh alias Kirpa Ram. The learned trial Court also held that delay in sending FIR to the Magistrate in this case has been satisfactorily explained as the deceased was rushed to hospital by eye witnesses to save his life and delay is not fatal to the prosecution case. There is no no delay in sending FIR to Magistrate and the same has been received on the same day by Magistrate and it has been observed by Hon’ble Supreme Court in AIR 2006 SC 1410 that delay in sending FIR to a Magistrate cannot be a ground to throw out the prosecution case, if the evidence adduced is otherwise found to be credible and trustworthy. The learned trial Court further held that the prosecution has succeeded in proving the case against accused persons beyond reasonable shadow of doubt. 9. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offence charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the established of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. The weakness in defence established by the accused persons is no help to prosecution, because the prosecution has to prove its case beyond all shadow of doubt. Mere creation of suspicion is not enough. There is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 10. The Hon’ble Apex Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has held as follows: “The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.” 11. In yet another decision in State of U.P. V. Ram Veer Singh and Another reported in 2007 (6) Supreme 164 the Hon’ble Apex Court has held as follows: “The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the 1 Justice K. N.B AS H A, Judge, High C ourt. evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.” 12. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the 1 Justice K. N.B AS H A, Judge, High C ourt. evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.” 12. More the heinous offence, stricter proofs are required. 13. The fact in issue can be established by direct evidence or by indirect evidence. Indirect evidence is called circumstantial evidence. 14. Learned counsel for appellant while arguing the matter has stated that there is inordinate delay in lodging the FIR as occurrence has taken place on 13.1.2004 and FIR has been registered on 23.1.2004; that there is also ample delay in recording the statements of witnesses during investigation; that story given in FIR is quite different to the story presented before Court by prosecution; that material witness PW Parvati (mother of deceased) has not been examined; that there are material contradictions in the statements of witnesses; that cross examination of witnesses have not been considered; that as per FIR, there was no eye witnesses, but after considerable time many eye witnesses were manipulated who all are related to deceased and to each other; that one son and another father of deceased, who otherwise were not eye witnesses as per their statements recorded u/s 161 Cr.P.C., but they posed them as eye witnesses during trial, so there is material improvements in their statements; that weapon of offence was not proved. 15. We have given our thoughtful consideration to whole aspects of the matter and have also gone through the cardinal principles of law for appreciating the evidence in heinous offence. 16. First question to be decided as to whether deceased died homicidal death or natural death. 17. PW Dr. L. D. Bhagat who conducted the postmortem of body of deceased has stated that he conducted postmortem of Jia Lal s/o Prem Nath R/o Kanser Bhaderwah with alleged history of assault on 13.1.2004 at village Kansar Bhaderwah. He was admitted in SDH Bhaderwah on 13-1-2004 and was thereafter referred to Govt. Medical College Jammu on 18.1.04 under MLC No: 345. L. D. Bhagat who conducted the postmortem of body of deceased has stated that he conducted postmortem of Jia Lal s/o Prem Nath R/o Kanser Bhaderwah with alleged history of assault on 13.1.2004 at village Kansar Bhaderwah. He was admitted in SDH Bhaderwah on 13-1-2004 and was thereafter referred to Govt. Medical College Jammu on 18.1.04 under MLC No: 345. He died on 23.1.2004 at 7.30 A.M.; on examination the following injuries were found on the body of the deceased; External Injuries: Infected lacerated wound over right parietal region of the scalp measuring 3 cm x 5 cm by bone deep with slugging and granulation tissues over margins of the wound. Internal Injuries: Massive bruising under the scalp present under the injury No:1, fracture of right parietal bone. The fractured piece of bone measuring 3 em X 2.5 em rounded in shape present inside the craneal cavity with laceration of the meninges and brain matter of right cerebral hemisphere, sub dural and sub arachnoid hemorrhages present under the fractured bone. In his opinion the death has been caused by craneocerebral injury with heavy blunt object. The injuries were ante mortem and about 10 days duration. He has proved postmortem report as EXPW-LD, which reveals that death in the case was due to cramo cerebral injury, with heavy blunt object. So it is proved that deceased died homicidal death. 18. Now second question to be decided is as to whether it is the accused persons who are perpetrator of crime as alleged by prosecution. 19. From the perusal of challan, we find that prosecution has based its case on eye witnesses namely PWs Parvati Devi, Neena Devi, Shib Ram, Kishore Kumar, Man Singh SPO and Nitam. Eye witness PW Parvati has not been examined. PW Neena Devi has stated that deceased was her husband. On 13th January 2004 on day of Lohri, Rattan Lal and Kirpa Ram told that they would come to their home for taking meal. One accused is his brother-in-law (Bahanoi) and the other is brother of his brother-in-law. When the accused entered inside the room they locked her and her children in one room and on their making noise neighbourers came there and opened the door. Her brother-in-law (Dewar) also came on spot and he searched the accused. One accused is his brother-in-law (Bahanoi) and the other is brother of his brother-in-law. When the accused entered inside the room they locked her and her children in one room and on their making noise neighbourers came there and opened the door. Her brother-in-law (Dewar) also came on spot and he searched the accused. Her husband was taken by the accused in the moon light in her presence and she told to her Dewar as to where her husband has been taken. Her ‘Dewar’ brought her husband to home on his shoulders. Her ‘Dewar’ told her that the accused were beating her husband and they had also thrown stones at her Dewar, but he was not injured. When her husband was brought home blood was oozing from his head which was got bandaged from the doctor as it was already night. On morning her husband was brought to Bhaderwah hospital and where doctors told that it is police case and he was treated after police came there. Her husband remained in Bhaderwah hospital for four days and the doctors told that the condition of the injured is serious, so he should be taken to Jammu hospital. Then her husband was taken to Jammu hospital where he remained under treatment for four days there and thereafter he died. She was also with her husband. The postmortem of her husband was conducted in Jammu hospital and after the postmortem the dead body was brought to Bhaderwah, where last rites were performed. She had given statement to police and police came after 13/14 days on spot. PW Shib Ram has deposed in examination-in-chief that he knows the accused persons present in the court. On 13th January 2004 he was in his house and at about 7/7.30 p.m heard noise from the house of Jia Lal. His Bhabi Neena Devi told to him that the accused have taken Jia lal from inside the house to somewhere. In the meantime Jia Lal called, ‘bachao’. When he reached there, he saw accused were beating Jia Lal with dandas (sticks). The deceased was lying on the ground and his face was towards sky. When he tried to intervene, the accused also attacked him and thereafter they brought the deceased to home by lifting. The accused thereafter fled away. The deceased had received injury on left side of head and was brought to Bhaderwah hospital in the morning. The deceased was lying on the ground and his face was towards sky. When he tried to intervene, the accused also attacked him and thereafter they brought the deceased to home by lifting. The accused thereafter fled away. The deceased had received injury on left side of head and was brought to Bhaderwah hospital in the morning. Thereafter police came there and recorded his statement. After 3/4 days the deceased was referred to Medical College where on 23-01-2004 he died. After post mortem at Jammu the deceased was brought back to Bhaderwah and on 26th January he was cremated. PW Kishore Kumar has deposed in examination-in chief that he knows the accused persons present in the court. On the day of Lohri in the month of January, 2004 he was in his house at 7/7.30 PM and came out for urinal, when heard noise coming from the house of the accused that “they have killed”, “they have killed”, ( mar diya, mar diya). When he reached on spot he saw that the deceased was lying on the ground and his face was towards Sky. There was injury in the head of Jia Lal. At that time Shib Ram, Balwant Singh and Prem Nath were there. He cannot say how Jia Lal had received injury. The sound of ‘save’, ‘save’ (bachao, bachao) was of ladies. Both the accused were present on spot. He had not asked injured Jia Lal as to how he was injured. Accused had told nothing and they were not talking anything. He was frightened and lifted Jia Lal and brought him to home. On next day Jia Lal was brought to Bhaderwah hospital. Police had not come there. Police came after 15/16 days and then his statement was recorded. He had not inquired about the death of the deceased in the village. He has no knowledge about the quarrel. It was dark and he has not seen as to what was in the hands of the accused. On hearing noise only he had come on spot and other village people had not come. The witness was declared hostile at the request of PP and on cross examination by PP the witness stated that in the house of deceased there are two rooms, one Kitchen and one cow shed. The name of father of deceased is Prem Nath and his mother’s name is Parvati. The witness was declared hostile at the request of PP and on cross examination by PP the witness stated that in the house of deceased there are two rooms, one Kitchen and one cow shed. The name of father of deceased is Prem Nath and his mother’s name is Parvati. Prem Nath father of the deceased was also at home. When the injured was being brought back by lifting at that time Man Singh and Shib Ram were also with them. Adjoining to the house of Jia Lal there are houses of Karanvesh and Balwant. Jia Lal and Balwant used to live in one house and now they are living separately. Parvati, Prem Nath, Man Singh and Balwant have also knowledge about the occurrence. Neena Devi wife of deceased have complete knowledge about occurrence. PW Man Singh has deposed in examination-in chief that he knows the accused persons present in the court. On 13th January 2004, day of Lohri, he had gone to home and from home he went to in-laws house in Kansar at 7.30 PM. He heard noise when reached halfway. People were on roof of in-laws house and he asked from the wife of Jia Lal namely Neena Devi she told that Jia Lal has been taken by the accused to their house and accused had beaten Jia Lal. She told him to go there and bring Jia Lal back. When he went there Jia Lal was lying unconscious on the ground and he was having injury on head. He had gone alone there. Prior to him Shib Ram and Kishore Kumar had gone there. But in cross examination stated that he has no personal knowledge of occurrence. PW Nitam Singh, a child witness, after satisfaction by court that he is competent to give statement has deposed in examination-in-chief that he reads in 10th class. He knows the accused persons present in the court. The deceased was his father. Six years ago on Lohri festival at 8/9, O’ clock, he, his grandfather, grandmother, mother and brothers were taking meal at home. His father was also taking meal with them. The accused Rattan lal and Kripa Ram present in the court came there. His mother told them to take meal. They replied nothing and dragged his father outside and started beating him. The witness further stated that they started crying. The accused locked them in a room. His father was also taking meal with them. The accused Rattan lal and Kripa Ram present in the court came there. His mother told them to take meal. They replied nothing and dragged his father outside and started beating him. The witness further stated that they started crying. The accused locked them in a room. They took his father with them. They shouted and their neighbourer Karanvesh came there and he opened the door and they came out. They went towards fields where accused were beating his father with dandas (sticks). When he along with Kishore Kumar, Man Singh, Shib Ram reached there, his father was lying there and accused had fled away. His father was lifted and brought to home. Compounder Naib Chand gave bandage to the injured and on other day he was brought to hospital where doctors told that the condition of the injured is serious and take him to Jammu. The injured was taken to Jammu and died after four days. The dead body was brought to home and last rites were performed. The injuries were caused with dandas (sticks) on head. The accused are brothers in relation. When the deceased was lifted from the field at that time blood was oozing to him. He was reading in 4th class at that time. 20. After careful perusal of these statements of eye witnesses, it is evident that PW Kishore Kumar has been turned hostile. PW Man Singh has stated that he has no personal knowledge as to how deceased has died. 21. If only oral statements of witnesses carry value then one can say there are enough materials in the statements of other eye witnesses on record to convict accused; but certain cardinal principles of law are also important to rely upon oral statements of witnesses. The statements of PWs Parvati (though not examined), Neena, Shib Ram and Kishore have been recorded on 6.2.2004 after 23 days of occurrence and 13 days of lodging of FIR; the statement of PW Man Singh has been recorded on 8.2.2004 after 25 days of occurrence and 15 days of lodging of FIR and that of PW Nitan Singh has been recorded on 17.2.2004 after 34 days of occurrence and 24 days of lodging of FIR. No reasonable and plausible explanation has been given. No reasonable and plausible explanation has been given. Court below has held that defective investigation will not discredit the statements of eye witnesses, though recorded in delay. This finding of court below is incorrect and not sustainable; because while dealing with the question of fact of delayed examination of the witnesses under section 161 of Cr.P.C. if the explanation offered for such delay is neither plausible nor acceptable, then definitely it is fatal. The inordinate delay in examination of material eye witnesses that too close relatives, is always fatal if not explained properly. There is always chance of false implication. In present case, it is not a case that these witnesses were not available there; there is no evidence that these witnesses had gone outside place of occurrence. So delay in recording their statements under section 161 Cr.P.C. was required to be explained by cogent means. 22. PW-28 Gian Chand Katoch retired Sub Inspector, who was I/O in the case, has admitted that he recorded the statements of Prem Nath, Parvati Devi, Neena Devi, Balwant singh, Shib Ram, Karan Vesh, Kishore Kumar, Mohan Lal and Madhu Lal on 6-2-2004. But has not given explanation as to why he recorded the statement in delayed manner. Apex Court in Criminal Appeal Nos.1624-1625 of 2013 case titled Harbeer Singh Vs Sheeshpal & Ors. with Criminal Appeal Nos.217-218 of 2013 in case titled State of Rajasthan Vs Sheeshpal & Ors. reported in AIR 2016 SC 4958 (decided on 20 October, 2016), it is held as under:- “11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808 ; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180 ; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 ; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808 ; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180 ; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 ; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242 ]. 16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106 ; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334 ; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1 ]. 17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371 , is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192 ; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.” 23. State Of Orissa, (1971) 3 SCC 192 ; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.” 23. Further the statements of these witnesses are totally at variance with prosecution story as narrated in initial FIR; the FIR which has been lodged on the statement of deceased –injured recorded by SI Anzar Ahmed PSI as per report No.20, Daily Diary dated 14.01.2004 in hospital, deceased Jia Lal stated that he is resident of village Kansar and is labourer; On 13.01.2004 at about 5.30 P.M. on the date of Lohri he was bringing his brother-in-laws Kashmir Singh alias Kirpa Ram and Rattan Lal to his home and when he was about to reach at home, scuffle took place between them and his brother in laws attacked him. Rattan Lal PSO posted in Sartingal injured him by inflicting Danda blow on his head and Kashmir Singh assaulted him with legs and fists. He fell on the ground and the above said persons who attacked, ran away from the spot. His family members and neighbourers brought him to home where he was given first aid and now he has come to hospital for treatment. But these witnesses have stated that accused persons had come to their house and dragged the deceased outside house; they locked other family members in room. There after accused took deceased outside house and beaten with the result deceased was injured and died on 23.1.2004 at GMC Jammu. 24. In our view, prosecution is required to prove the facts before court, which has been given in FIR; it is not a case that FIR has been lodged on some reliable source; but same has been lodged on the statement of deceased/injured. If there is a variation in FIR and the version narrated in the court, it always a matter of grave suspicion to the court; if certain important facts are not mentioned in the FIR and they are brought to the court subsequently as substantial evidence, the court should not believe the statements of witnesses. Further in FIR, the presence of named eye witnesses has not been mentioned. 25. Further in FIR, the presence of named eye witnesses has not been mentioned. 25. PW- Prem Nath is father of deceased is not eye witness as per prosecution, but he has deposed on Lohari day near about one year he had gone to house of his son and when he was taking meal at 6/7 P.M., there was noise outside that Kashmir Singh and Rattan Lal took his son Jia Lal forcibly to their house. He came out and came to know that his son has been beaten by these two accused. He also went there and saw that the accused were dragging the accused towards their house and he had himself seen while the deceased was being dragged. He is having land with the house of accused and after beating his son they throw him in it. Man Singh, Shih Ram and Kishori lifted the deceased Jia Lal to his house. He also went to the house of his son Jia Lal. He asked the son as to what is the matter and he told that accused have beaten him with dandas (sticks). He had received injury on head. On cross examination when this witness was confronted he has stated he stated that he has personal knowledge about this case. The words written in his statement u/s 161 Cr.P C, that he heard Kripa Ram alias Kashmir Singh and Rattan Lal with the intention to kill his son Jia Lal and had taken him to their house by giving severe beatings with dandas (sticks) and injured him seriously are correct. His statement that he was being taken by dragging, is correct. When police recorded his statement, he had told them. But he cannot say why police has not recorded this statement. But his statement has been recorded on 6.2.2004 after 23 days of occurrence and 13 days of lodging of FIR. 26. PW Balwant Singh s/o Prem Nath, the brother of deceased has deposed that on 13th January 2004 on the day of Lohari, at 7.30 PM he had called his father Prem Nath and Mama Des Raj for meal in his house. While taking meal, his father said that he does not take meat. So he told his wife to bring ghee. When she went to bring ghee she heard noise coming from down side. While taking meal, his father said that he does not take meat. So he told his wife to bring ghee. When she went to bring ghee she heard noise coming from down side. Pushpa Devi his sister was calling that brother Jia Lal has been beaten by Rattan Lal and Kashmir Singh. His house and house of Jia Lal is common, but they prepare their own food and the house has been partitioned. He, his father and many people came out. The wife of Jia Lal and his mother Parvati told that the accused have taken Jia Lal to their house. They all went in search of deceased towards the down side and saw that Man Singh, Shib Ram and Kishori were bringing the deceased while lifting and he was still alive and blood was oozing from his head. His mother and wife of deceased were present there. The accused might have invited deceased Jia Lal at their house for taking meal. His statement has also been recorded on 6.2.2004 after 23 days of occurrence and 13 days of lodging of FIR. These two witnesses are not eye witnesses as per prosecution and their statement recorded u/s 161 Cr.P.C also reveal that they are not eye witnesses. 27. Both PWs Prem Nath and Balwant Singh have posed themselves as eye witnesses. So there is, thus, material improvement in their statements, which rendered their statements doubtful especially when their statements have been recorded during investigation after considerable times. 28. PW-6 Karan Vesh has deposed that on 13-01-2004, on Lohari day he was taking meal in his house and Parvati was in her house and called him to open the door. He went to the house of Parvati by leaving half meal. He opened the door from outside and told nothing and neither he asked from them. Then he came back to his house for taking meal. When he opened the door he saw Parvati, Neena Devi and two children there. He had not seen the accused there and neither he had seen the deceased there. Thereafter, in the morning he came to know that all the people are taking Jia Lal to hospital. He also went with them. When they had seen Jia Lal he was in injured condition and was not talking. Towel and Dupatta was folded on his head, so he had not seen the injuries. Thereafter, in the morning he came to know that all the people are taking Jia Lal to hospital. He also went with them. When they had seen Jia Lal he was in injured condition and was not talking. Towel and Dupatta was folded on his head, so he had not seen the injuries. Neena Devi had told him that the accused have beaten deceased. On cross examination the witness stated that he has no personal knowledge as to whether the accused had come to the house of deceased on said day. He has denied that the words written in his statement u/s 161 Cr.P C that, he came to know that Kripa Ram alias Kashmir Singh, Rattan Lal sons of Sant Ram of the said village had come on invitation being relatives, is wrong He has also denied the words written in statement u/s 161 Cr.P.C that, there was heated exchange of words at the house of Jia Lal and both caught hold of Jia Lal and started beating him, is wrong. 29. This witness has denied his statement about involvement of accused. His statement too has been recorded on 6.2.2004 after 23 days of occurrence and 13 days of lodging of FIR. 30. PW-Madhoo Lal S/o Bhagat Ram has deposed that accused persons gave beating to Jia Lal in Kansar village and thereafter he died in Medical College, Jammu during treatment. The statement of this witness has also been recorded on 8.2.2004. 31. Further beside these PWs Parvati Devi (mother of deceased), Neena Devi (wife of deceased), Shib Ram (brother of deceased), Kishore Kumar (cousin brother of deceased), Man Singh SPO and Nitam (son of deceased), other witnesses cited in challan are Prem Nath (father of deceased), Balwant Singh (brother of deceased) and PW Karanvesh is cousin of deceased. So all material witnesses are related to deceased. The law is clear that related witnesses cannot be termed as interested witnesses. But care has to be adopted while appreciating their statements. 32. In citation (supra) the effect of delay in recording the statement has already been highlighted. Further, in same judgement (supra) it has been held that:- “18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimonies were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion. 19. Further, in same judgement (supra) it has been held that:- “18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimonies were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion. 19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964 (7) SCR 397, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: “There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully........But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence.…..If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.” 32. Next is lodging of FIR. In present case, FIR has been lodged on 23.1.2004, whereas occurrence has taken place on 13.1.2004; the explanation given is that on 14.1.2004, SI Azar Ahmed after recording the statement of injured deceased in hospital entered in report in daily Roznamcha vide report no.20 in police station Bhaderwah. But copy of Roznamach no.20 of Police station Bhaderwah dated 13.1.2014 has not been proved during trial; because neither SI Anzar Ahmed has been produced nor original Roznamcha was called to prove it. But copy of Roznamach no.20 of Police station Bhaderwah dated 13.1.2014 has not been proved during trial; because neither SI Anzar Ahmed has been produced nor original Roznamcha was called to prove it. Further the statement of deceased Jia Lal recorded on 14.1.2004 has not been proved; because neither SI Anzar Ahmed the scriber of this statement has been produced nor this statement was put to Doctor B.A Bhat BDO Health &Family Welfare in whose presence it was recorded for authentication, when his statement was recorded. 33. The Hon’ble Apex Court in Meharaj Singh (L/Nk.) V. State of U.P. ( 1994 (5) SCC 188 ) has held that: “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.” 34. The Hon’ble Apex Court in Dilawar Singh V. State of Delhi reported in 2007 (12) SCC 641 , has held that:- “9. In criminal trial one of the cardinal principles for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look 3 Justice K. N.B AS H A, Judge, High C ourt. for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.” 35. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look 3 Justice K. N.B AS H A, Judge, High C ourt. for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.” 35. The argument of State counsel that as deceased has died on 23.1.2004 and FIR has been lodged on same day so there is no delay, does not inspire confidence of Court, because it was duty of police to register the FIR on 14.1.2004, when statement of deceased was recorded by police and injury form of injured was filled as he was examined by doctor vide EXPW-BA , which has been proved by PW Dr. B. A. Bhat. Further the statement of injured –deceased which was recorded by SI Anzar Ahmed in presence of Dr. B.A. Bhat BDO Health &Family Welfare, could have been treated as dying declaration in terms of section 32 of Evidence Act; but as already held neither scriber of statement has been produced nor Doctor was put this statement during trial. So this statement has remained as a piece of paper. 36. Now we are left to appreciate the recovery of weapons of offence on confessional statement of accused Kirpa Ram and Rattan Lal; accused have been arrested on 15.2.2004; they have made disclosure statement on 20.2.2004 in presence of PWs Madho Lal, Des Raj and PW Om Kumar that they had hidden the sticks (sickles) near to their houses in heap of wood. No explanation has been given with regard to delay of 5 days in recording disclosure statements of accused after their arrest. Further, seizure of weapons of offence Sticks (Dandas) have been made on 22.2.2004 in presence of PWs Madho Lal s/o Mohan Lal, Om Kumar and Madho Lal S/o Bhagat Ram. 37. PW-14 Des Raj has deposed that deceased was his nephew (Bhanja). Accused Kripa Ram is married with the daughter of his sister. The deceased was injured in quarrel and he died due to these injuries. Police had come on spot in Kansar and he was called by police there. Police had also inquired from him. Dandas (sticks) etc. were also seized by police and papers were also prepared and his signatures were taken. Namberdar and accused were also there. The deceased was injured in quarrel and he died due to these injuries. Police had come on spot in Kansar and he was called by police there. Police had also inquired from him. Dandas (sticks) etc. were also seized by police and papers were also prepared and his signatures were taken. Namberdar and accused were also there. Both the accused had brought dandas (sticks) and given to police. The signatures of accused were also taken. He had put his signatures in English. He has heard the contents of the disclosure memo of accused Rattan lal, which is correct and bear his signature and same is exhibited as EXPW-DR. Disclosure memo of accused Kashmir Singh does not bear his signatures. On cross examination the witness stated that police came on spot on 22nd February 2004. The 1/0 had come on spot. The accused had made disclosure in Gaddi language, but what words were spoken in Gaddi language he does not remember. 38. Bare perusal of his statement, it is evident that he has denied the fact of disclosure made by Kashmir alias Kirpa Ram; so far disclosure statement of other accused, he has stated that it has been made on 22.2.2004; whereas exact date is 20.2.2004. Further he has stated that both the accused had brought dandas (sticks) and given to police. Whereas he is not witness to seizure of weapons of offence. 39. PW-Om Kumar SGC has stated that on 22-02-2004, they went to Kansar village along with accused Rattan Lal and two dandas (sticks) were recovered from a heap of wood. The same were seized and brought in the Police Station and seizure memo was prepared, the memo of recovery of weapon dandas (sticks) is correct and exhibited as EXPW-OK. On cross examination the witness deposed that the place from where the dandas (sticks) were recovered and 19/20 other dandas (sticks) were also there and same were recovered after about two months of the date of occurrence. The dandas (sticks) which were recovered by police were not having any blood stains and were of common type available in every house. 40. Bare perusal of his statement, it is evident that he was witness to disclosure statements of accused, but he did not prove it; he has also stated that there were 19/20 other dandas (sticks) at the place of recovery. 40. Bare perusal of his statement, it is evident that he was witness to disclosure statements of accused, but he did not prove it; he has also stated that there were 19/20 other dandas (sticks) at the place of recovery. When disclosure statements are not proved by this witness, then seizure is of no consequence. 41. PW Madhoo Lal S/o Bhagat Ram has stated that accused confessed their guilt in police station on 20.2.2004 and documents were prepared. Thus, he stated nothing with regard to hiding of weapons of offence. He is also witness to seizure memo of Dandas effected on 22.4.2004 after two days of disclosure statements. Another PW Madho Lal s/o Sobha Ram though has admitted his signature on seizure memo .but in cross examination has stated that nobody produced any dandas, clothes or Jacket before him. 42. In this way disclosure statements of accused and seizure memo have not been proved beyond reasonable doubts. Even if, it is considered that dandas have been recovered, there is no evidence that these were same dandas used in commission in crimes, because it has come in evidence that there were 19/20 dandas at place of recovery; further it is not understandable that when disclosure statements have been made on 20.2.2004, then why police went at place of recovery after two days on 22.4.2004. 43. Further, PW Mohan Lal, superdar of seal/ring with which seized articles were sealed has denied that ring was given to him. He has also stated that he has never seen clothes seized were worn by deceased. PW Dolat Ram has stated that he has no knowledge as to how Jia Lal has died. PW Sanjay Kumar has stated that deceased was his Mama; how he died he has no knowledge. PW-Mohd Iqbal is Patwari, who has prepared site plan of place of occurrence on 9-02-2004 EXPW-Ml during investigation. 44. The courts while appreciating the evidence in criminal cases have to see the degree of proof higher than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused then court should not go on convicting the accused. Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion .The burden of proof never shift, it is always on prosecution. If there come the slightest doubts regarding the involvement of accused then court should not go on convicting the accused. Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion .The burden of proof never shift, it is always on prosecution. All the material document in challan have to be proved beyond reasonable doubts, otherwise these are only pieces of papers; all the oral facts relevant to matter in issue have also to be produced like other evidence, otherwise court cannot come to conclusion about guilt of accused. 45. Keeping in view whole circumstances of case, we are of considered opinion that prosecution has not proved its case beyond reasonable doubts. Appeal is allowed. Reference is rejected. Appellants, who are in custody, are acquitted of charges leveled against them. They be set at liberty, if they are not required in any other case. Challan is dismissed accordingly. Seized record, if any, be destroyed. File shall be consigned to records after its due compilation.