JUDGMENT : Badar Durrez Ahmed, J. This appeal is directed against the judgment dated 04.04.2014 delivered by the Principal Sessions Judge, Kupwara in Case File No. 118/Session (date of institution 13.11.2004), whereby the appellant was convicted for the commission of the offence punishable under Section 302 Ranbir Penal code and Sections 7/25 of the Indian Arms Act, 1959. The said case arose out of FIR No. 25/2004 registered in Police Station, Kupwara. By a separate order on sentence dated 05.04.2014, the appellant was sentenced to life imprisonment (simple) with a fine of Rs. 5,000/-for the Commission of offence punishable under Section 302 Ranbir Penal code. He was also sentenced to simple imprisonment of five years for the offences punishable under Section 7/25 of the Indian Arms Act 1959. The sentences were, however, directed to run concurrently and the period of detention undergone by the convict during the investigation and trial was directed to be set-off against the term of imprisonment awarded as above. In default of payment of the fine, the convict was further directed to undergo simple imprisonment of three months. Since the sentence of life imprisonment was subject to confirmation by this Court as required under Section 374 of the Code of Criminal Procedure, the accompanying reference has been made to this Court for confirmation of the sentence of life imprisonment. The appellant is aggrieved by both the order of conviction and the order on sentence. 2. Initially there were three accused, the appellant (Ghulam Nabi Mougal), Shazad Ahmad Khan and Khurshid Ahmad. The other two accused have been acquitted on the benefit of doubt by the trial court. 3. The charge framed against the appellant was that on 02.09.2004, he, after entering into a conspiracy with the two other accused persons in Hotel Shamim, in order to obtain arms and ammunitions of Abdul Rashid Mougal S/o Abdul Rahim Mougal R/o Hyhama Manigah, conspired to kill him. The deceased Abdul Rashid Mougal was taken to a desolate place near Jummatari. The appellant, in the presence of the other accused, pushed the deceased, who fell on the ground. The appellant snatched the rifle of the deceased and, using the same, fired at the deceased. He also took a pistol, wireless set and rifle and kept these arms and ammunitions hidden in the houses of PW-14 and PW-15, which during investigation were recovered, on his disclosure statement. The appellant snatched the rifle of the deceased and, using the same, fired at the deceased. He also took a pistol, wireless set and rifle and kept these arms and ammunitions hidden in the houses of PW-14 and PW-15, which during investigation were recovered, on his disclosure statement. Consequently, the appellant was charged of having committed the offences under Sections 120-B, 302, 379 Ranbir Penal code and 7/25 of the Arms Act. The charge against the other two accused was the same as in the case of the appellant, the only difference being that the recovery of arms and ammunitions was stated to have been effected on the disclosure of the accused No. 1 (the appellant herein). The charge against the accused was denied. Consequently, the trial ensued and culminated in the impugned order of conviction, whereby, as aforesaid, the accused No. 1 (the appellant herein) was convicted of the offence under Section 302 Ranbir Penal code and 7/25 of the Indian Arms Act, whereas, the other two accused were acquitted. 4. The case is based on circumstantial evidence. The key witness on the part of the prosecution (which had listed 39 prosecution witnesses) is PW-1 Mst. Lethi (sister of the deceased), who is stated to have last seen the deceased in the company of the accused. Apart from this witness, another occurrence witness has been cited as (PW-2) Liyaqat Ali. (PW-6) Rustum Ali Khan is stated to be the seizure and recovery witness. (PW-8) Constable Mohammad Abass is stated as the witness concerning the disclosure statement, Constable Abdul Ahad Reshi (PW-11) is stated as a seizure and recovery witness and importantly Riyaz Ahmad Payer (PW-14) and Ghulam Hassan Payer (PW-15) were also stated to be occurrence and recovery witnesses. The other important witnesses will also be discussed as we go along. 5. First of all, let us examine the testimony of PW-1 (Mst. Lethi). She is the sister of the deceased and the appellant is also her brother-in-law. She states that about a year and two months ago (from the date of her deposition), she was in her house and in the evening she saw the appellant and accused No. 2 walking along with the deceased and also a third person, who was not identified by her. She is stated to have seen them going towards Jummatari. She states that about a year and two months ago (from the date of her deposition), she was in her house and in the evening she saw the appellant and accused No. 2 walking along with the deceased and also a third person, who was not identified by her. She is stated to have seen them going towards Jummatari. The light was dim, but, according to her, a person could be identified. After some time, she heard firing and at that point of time, she apprehended that her brother had been killed. She had also stated that when she had seen the appellant and the accused No. 2 alongwith the deceased, the appellant had a gun. She further stated that her brother was working in SOG and that she went towards the place of occurrence and one Riyaz Ahmad was also with her, but, she returned due to fear because it was dark. She stated that, she then saw the appellant and accused No. 2 returning alongwith the third person and at that time, the appellant had a gun. It is on the next day that she went to the place of occurrence and found that many people had gathered there. She saw the dead body of her brother, where-after, the Police came and took the dead body for autopsy. 6. In the course of her cross examination, she stated that the gun which is said to have been carried by the appellant had not been shown to her in Court. She further stated that the appellant had a rifle before the occurrence as well as after the occurrence. She stated that when the accused returned, the deceased was not with them and because of this, she apprehended that her brother had been killed. She, however, stated that she did not see the accused firing at the deceased. Thereafter, she immediately stated that she had seen the firing and that when she heard the firing it was not totally dark and a person could be identified. She also stated that she had not shown the Police the place where she had seen the deceased going along-with the accused persons. Importantly, she also stated that the accused persons in her estimation had no animosity with the deceased. She also stated in her cross examination that she had seen the deceased alongwith the accused and thereafter she did not see the deceased. Importantly, she also stated that the accused persons in her estimation had no animosity with the deceased. She also stated in her cross examination that she had seen the deceased alongwith the accused and thereafter she did not see the deceased. She also stated that she cannot say as to who amongst the accused had fired and killed the deceased. She further stated that nobody else would have fired upon her brother and that the weapon was seen by her in the hands of the appellant. 7. If one were to analyze the testimony of PW-1 (Mst. Lethi), it becomes immediately clear that it has several contradictions. At one stage, she stated that she did not see the accused firing on the deceased and thereafter she stated that she had seen the firing, and, further substantiated that it was not totally dark at that time and a person could be identified. Towards the end of her cross examination, she again said that she could not say as to who amongst the accused had fired and killed the deceased. She conjectured that nobody else would have fired upon her brother and that the weapon was seen by her in the hands of the accused. Therefore, there is clear contradiction in her own statements with regard to her being an eye witness. Clearly, she is not an eye witness of the occurrence. 8. Her conduct is also quite unnatural. On the one hand, she is alleged to have stated that she saw the accused and the deceased going together towards Jummatari and that she heard the firing, whereupon, she apprehended that her brother had been killed. On the other hand, she did nothing that evening, although, according to her, there were others with her including one Riyaz Ahmad, to either report the firing or go to the scene of occurrence. She waited till the next morning to go to the place of occurrence when a large number of people had already gathered around the dead body of her brother. Thus her conduct is far from being natural. 9. Another important point is that she has repeatedly stated that the appellant was the one who had a gun/rifle. He had a rifle when she allegedly saw her brother in the company of the accused and he also had a rifle when she allegedly saw the accused returning without her brother. Thus her conduct is far from being natural. 9. Another important point is that she has repeatedly stated that the appellant was the one who had a gun/rifle. He had a rifle when she allegedly saw her brother in the company of the accused and he also had a rifle when she allegedly saw the accused returning without her brother. If this were to be believed, this would put paid to the prosecution case. This is so because as per the charge framed against the accused, the conspiracy was to obtain the arms and ammunitions of the deceased (Abdul Rashid Mougal). The deceased is said to have been in possession of a rifle, pistol, wireless set and certain ammunitions. If the appellant was the only person armed with a gun while going with the deceased and the other accused and also while returning sans the deceased, then, obviously, no rifle or pistol had been taken from the deceased as alleged by the prosecution. 10. Even PW-1 (Mst. Lethi) acknowledged the fact that the light was dim though she has stated that it was not so dim that a person could not be identified. But there are other witnesses who have stated that it was already dark and there was difficulty in identifying the individuals. The testimony of PW-1 (Mst. Lethi) has been relied upon primarily as evidence of a last seen nature. This obviously requires clarity in identification, otherwise, such evidence would be worthless. Since the light was fading, there cannot be absolute certainty with regard to identification of the accused. Therefore, in our view, it would be very dangerous to rely upon the testimony of PW-1 for all the above reasons. 11. It may be recalled that the charge framed against the accused was that they had entered into a conspiracy in order to obtain the arms and ammunitions of the deceased (Abdul Rashid Mougal) by killing him. This conspiracy theory has been rejected by the learned Sessions Judge, and because of that, the other two accused have been acquitted. The learned Sessions Judge after examining the testimony of PW-28 (Shahbaz Khan) and other witnesses, namely, PW-26 and PW-27, came to the conclusion that the prosecution has not been able to establish that the three accused had entered into the alleged conspiracy. The learned Sessions Judge after examining the testimony of PW-28 (Shahbaz Khan) and other witnesses, namely, PW-26 and PW-27, came to the conclusion that the prosecution has not been able to establish that the three accused had entered into the alleged conspiracy. A categorical finding was returned that there was no evidence that a conspiracy had been hatched in Hotel Shamim. There was also no evidence that pursuant to the conspiracy, the other two accused had boarded a vehicle arranged by PW-26 which was driven by PW-27 as both the said witnesses had not supported the prosecution case. 12. It is thus evident that once the conspiracy theory goes out of the window, the aspect of motive also does not survive. This is so because several witnesses including PW-1 (Mst. Lethi) had categorically stated that there was no animosity between the accused and the deceased. Clearly, if there was no conspiracy to obtain the rifle and other weapons of the deceased and if the accused did not have any animosity with the deceased, there was no question of any motive nor has the prosecution brought forth any alternative theory with regard to motive. It is important to remember that in a case of circumstantial evidence, motive becomes an important aspect, although it may not be that important in a case of direct evidence based on eye witness accounts. This being a case of circumstantial evidence, the absence of an establish motive certainly dents the prosecution case. 13. The next aspect which seems to have influenced the mind of the learned Sessions Judge in convicting the appellant was the so-called confession on the part of the appellant. First of all, a confession before a Police Officer would not be admissible and only that part of a disclosure statement can be relied upon which leads to the discovery of any fact in view of Section 27 of the Evidence Act. It is alleged on the part of the prosecution that the appellant made a disclosure statement, inter alia, to the effect that he had hidden the rifle, the pistol and the wireless set in the house of Riyaz Ahmad Payer (PW-14) and Ghulam Hassan Payer (PW-15). But these witnesses have not supported the prosecution case with regard to the recovery of the aforesaid articles. PW-14 (Riyaz Ahmad Payer) stated that he did not know the appellant nor did he know the deceased. But these witnesses have not supported the prosecution case with regard to the recovery of the aforesaid articles. PW-14 (Riyaz Ahmad Payer) stated that he did not know the appellant nor did he know the deceased. He stated in his examination-in-chief that his house was not searched and that he had come to the Court for the first time. It is intriguing that despite this categorical statement which completely falsifies the prosecution case, this witness was not declared as hostile by the prosecutor. It is alleged that a rifle (AK-47) which was also an alleged weapon of offence alongwith two magazines were recovered from the house of PW-14 (Riyaz Ahmad Payer). But, this has been point blank denied by the said witness. On the other hand, he has stated that his house was never searched. There was no cross examination on this aspect by the prosecution. 14. PW-15 (Ghulam Hassan Payer) in his examination-in-chief stated that he did not know the accused nor did he know the deceased. He also stated that he had not heard the sound of firing on the alleged date of occurrence nor did he go to the spot of the occurrence. Furthermore, and more importantly, he stated that the Police did not search his house. This witness was, however, declared as hostile by the public prosecutor and was allowed to cross examine him. In cross examination, he reiterated that the Police did not come to his house. He also denied that the appellant had come to his house at 9 Oclock and had handed over the weapons to him which he kept hidden in the bedding. It is thus clear that neither PW-14 nor PW-15 from whose possession the rifle, pistol, wireless set and ammunitions is said to have been recovered, at the instance of the appellant, supported the prosecution case. On the contrary, they have categorically stated that there was no search conducted in their respective houses. 15. PW-11 (Abdul Ahad Reshi) who has been cited as a recovery witness stated in his examination-in-chief that the Police had recovered one rifle, but he also stated that he did not see anybody in the custody of the Police and, particularly, he did not see any of the accused in the custody of the Police. 15. PW-11 (Abdul Ahad Reshi) who has been cited as a recovery witness stated in his examination-in-chief that the Police had recovered one rifle, but he also stated that he did not see anybody in the custody of the Police and, particularly, he did not see any of the accused in the custody of the Police. He had also stated that he had not seen the recovery of the pistol and wireless set from the house of Ghulam Hassan Payer. In cross examination, he stated that he had seen the accused for the first time in the Court and that the Police had told him that they had recovered the pistol and wireless set from the house of Ghulam Hassan Payer. He further stated that the Police had showed him a pistol and wireless set and obtained his signature on the seizure memo Exhibit PW 11/1. He had further stated that he did not enter into the house of Ghulam Hassan Payer alongwith the Police. He also stated that it was incorrectly mentioned in his statement under Section 161 that in his presence, at the instance of the accused (Ghulam Nabi Mougal), recovery of an AK-47 rifle and two magazines were effected from Riyaz Ahmad Payer from his house from underneath the bedding. 16. From the above testimony, it is evident that PW-11 (Abdul Ahad Reshi) has completely demolished the prosecution case with regard to recovery and that, too, at the instance of the appellant. This being the case, the so-called disclosure statement becomes worthless. 17. PW-12 (Abdul Rashid Payer) is also said to be a witness to the recovery of the rifle. In his examination in chief, he deposed that he did not know the accused nor the deceased. The Police had a rifle which they showed to him, but he did not see anybody in the custody of the Police. He further stated that he did not know from where the arms and ammunitions were brought by the Police. He signed the paper prepared by the Police, but stated that the contents of Exhibit PW 11/1 are not true. The seizure memo regarding the rifle Exhibit PW 12/1 bears his signature. During cross examination, the said witness deposed that he had seen the accused in Court for the first time. 18. He signed the paper prepared by the Police, but stated that the contents of Exhibit PW 11/1 are not true. The seizure memo regarding the rifle Exhibit PW 12/1 bears his signature. During cross examination, the said witness deposed that he had seen the accused in Court for the first time. 18. This witness also completely demolishes the prosecution case with regard to recovery of the rifle and other arms and ammunitions and, consequently, the alleged recovery at the instance of the appellant. 19. PW-8 (Constable Mohammad Abass) has been cited as a witness of the so-called disclosure statement. During cross examination, he stated that the appellant was questioned by the Investigating Officer in his room and that no civilian person was present. He also stated that at the time of recovery of the rifle, he was also present, but he did not go inside the house. Importantly, what was stated was that at the time of recovery, the appellant was not with them. 20. Considering the aforesaid evidence, it cannot at all be said that any recovery had been effected and that too at the instance of the appellant. Since the recovery itself becomes highly suspect, the alleged disclosure statement also looses all significance. There is, therefore, no tangible evidence to connect the appellant with the crime. 21. The trial court has convicted the appellant on the basis that the appellant and the deceased were last seen together by placing reliance on, inter alia, the testimony of PW-1 (Mst. Lethi), which we find to be insufficient for the purposes of returning a finding of conviction. The trial court, surprisingly also placed reliance on the fact that everybody was suspecting the involvement of the appellant. No amount of suspicion can result in conviction without there being tangible evidence direct or circumstantial indicating culpability beyond reasonable doubt. The learned Sessions Judge also placed a great deal of reliance on the disclosure statement which, we have already indicated above, becomes meaningless in the wake of non-discovery of any fact pursuant thereto. 22. For all the above reasons, we are of the view that the prosecution has not been able to establish its case against the appellant beyond reasonable doubt. Consequently, the impugned order of conviction and sentence are set-aside. 23. The appeal is allowed and the reference is also disposed of as there does not survive any sentence. 22. For all the above reasons, we are of the view that the prosecution has not been able to establish its case against the appellant beyond reasonable doubt. Consequently, the impugned order of conviction and sentence are set-aside. 23. The appeal is allowed and the reference is also disposed of as there does not survive any sentence. The appellant is liable to be released forthwith as he has been acquitted of all charges. The concerned Jail Superintendent is directed to set-free the appellant insofar as this case is concerned.