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2022 DIGILAW 435 (JK)

Onkar Nath v. State of J&K

2022-08-31

MOHAN LAL, RAJNESH OSWAL

body2022
JUDGMENT : RAJNESH OSWAL, J. 1. One appeal bearing Crl A(D) No. 33/2019 has been filed by appellants-Onkar Nath and Pawan Kumar, whereas the other appeal bearing Crl A (D) No.31/2019 has been filed by appellant-Rakesh Kumar against the judgment of conviction dated 25.04.2019 and order of sentence dated 27.04.2019 passed by the court of learned Additional Sessions Judge, Kathua (hereinafter to be referred as the trial court) in File No.108/14/12 titled “State versus Onkar Nath & Ors.”, whereby the appellants have been convicted for commission of offences under sections 302/34 RPC and 4/25 Arms Act and they have been sentenced to undergo rigorous imprisonment for life and fine of Rs. 30,000/- and in default of payment of fine, they have been directed to undergo further simple imprisonment for 03 months. Further the appellants namely Onkar Nath and Pawan Kumar have been sentenced to simple imprisonment for 03 years for commission of offence under section 4/25 Arms Act. Both these appeals are being disposed of by the common judgment. 2. The judgment has been assailed on the ground that the prosecution could not prove the case against the appellant as also the recovery of weapons has not been proved by the prosecution. Contentions of Appellants: 3. Mr. Sunil Sethi, learned senior counsel assisted by Mr. Navyug Sethi has vehemently argued that even the alleged injured witness, who was complainant as well, has not supported the prosecution and the two witnesses, namely, Balbir Singh and Bachan Lal, who have been allegedly cited as eye witnesses cannot be relied upon as the mere perusal of their statements would reveal that they were chance witnesses and they have not been able to satisfactorily explain their presence on spot. In nutshell the contention of appellants is that prosecution has miserably failed to prove by cogent evidence that the appellants had killed the deceased. He further argued that even the disclosure statements of the appellants have not been proved, those led to the recovery of weapon of offences. Contentions of Respondent: 4. Per contra, Mr. Dewakar Sharma, learned Dy. A.G, vehemently argued that the presence of eye witnesses on spot was natural as they were the passengers travelling in the Bus and the prosecution had proved the case against appellants beyond reasonable doubt. 5. Heard and perused the record. Case of Prosecution: 6. Contentions of Respondent: 4. Per contra, Mr. Dewakar Sharma, learned Dy. A.G, vehemently argued that the presence of eye witnesses on spot was natural as they were the passengers travelling in the Bus and the prosecution had proved the case against appellants beyond reasonable doubt. 5. Heard and perused the record. Case of Prosecution: 6. The case of the prosecution is that on 28.04.2005 at 2035 hours, the complainant, Balbir Singh in an injured condition, made an oral report in the Police Station, Hiranagar that he was a driver of the bus bearing registration No. JK02T-6443 and one Santokh Singh alias Shoka S/o Thoru Ram was the conductor of the bus. After boarding the passengers from Jammu, they were going towards Kathua and at around 7:30 PM in the evening, when he reached at Kishanpur Kandi NHW, the bus was stopped for de-boarding of the passengers. He heard the noise and when he looked back, he found that three boys, one was having drat in his hand, second one was with kirch and third one was without weapon, had got hold of conductor. The boy, having drat in his hand, hit the conductor at his arm and the second boy having kirch hit him at the left side of the chest due to which the conductor was seriously injured and he fell down and became unconscious. When he intervened, then the boy having drat, hit him on his arm and threatened that in case he came ahead, he would kill him. All the three persons because of enmity and in pursuance of the conspiracy had injured the conductor with kirch and drat. When few passengers raised hue and cry, all the three accused ran away. He did not know the names of the boys but could identify them and all the three boys were of 25-30 years of age. One of them was tall and the other two were of normal height. He took the conductor in an injured condition to the Kathua Hospital and on examination, the Doctor declared him brought dead. 7. On receipt of the information, FIR bearing No. 38/2005 for commission of offence under sections 302/34/323 RPC and 4/25 Arms Act was registered. During the course of investigation and on identification by the complainant, site plan was prepared and post-mortem of the deceased was got conducted by the Doctors. 7. On receipt of the information, FIR bearing No. 38/2005 for commission of offence under sections 302/34/323 RPC and 4/25 Arms Act was registered. During the course of investigation and on identification by the complainant, site plan was prepared and post-mortem of the deceased was got conducted by the Doctors. The bus was seized, blood lying in the bus was also collected and seizure memo thereof was prepared. The suspects were arrested and during the investigation, it emerged that in the house of one Shivnandan R/o Kishanpur Kandi, few boys were seen while sitting in his house in the noon on the alleged day of occurrence but their whereabouts were not known. They were outsiders and suspects. During investigation, Shivnandan was asked to participate in the investigation and it was found that on the alleged day of occurrence, 03 boys, namely, Onkar Nath alias Fongi, Rakesh Kumar and Pawan Kumar alias Balla, all residents of Pakki Mandi Samba along with Labbu alias Manohar Lal were sitting in house of Shivnandan. Manohar Lal @ Labba was friend of Shivnandan. He had also provided meals to these boys and thereafter, the accused Onkar Nath stated that he was beaten by a conductor at Jammu, Bus Stand with a kirch and we have to take revenge of that. On hearing this, Shivnandan and Labbu refused to support them and thereafter, all the four boys left for Samba by a scooter and Shivnandan too left for Kathua in connection with some domestic work. In the evening at 8 PM, when Shivnandan reached at Chhan Rorian, he came to know that the above said boys entered into the bus and assaulted the deceased, who was Sikh with drat and kirch, he sustained grievous injuries and later on he succumbed to his injuries. As such, Shivnandan suspected that the said accused might have committed the murder. The next day in the morning, he went to his friend Labbu at Samba and Labbu told him that the conductor has been murdered by the above said boys/accused. Subsequently the accused were arrested. Statements of the witnesses were recorded and during investigation, the accused made disclosures about the weapons of offence, pursuant to which the weapons of offence were recovered on their disclosure. Seizure memos and site plans of the place of recoveries were prepared. Their identification was also got conducted from the witnesses. Subsequently the accused were arrested. Statements of the witnesses were recorded and during investigation, the accused made disclosures about the weapons of offence, pursuant to which the weapons of offence were recovered on their disclosure. Seizure memos and site plans of the place of recoveries were prepared. Their identification was also got conducted from the witnesses. The Investigating Officer proved the offence against all the three accused under sections 302/34/323 RPC and 4/25 Arms Act. The charges for commission of offences under sections 302/34/323 RPC and 4/25 Arms Act were framed against the appellant-Onkar Nath and Pawan Kumar whereas charge for commission of offence under section 302/34 RPC was framed against appellant-Rakesh Kumar on 16.12.2005. 8. The prosecution had cited as many as 25 witnesses, out of which prosecution examined 18 witnesses. In order to appreciate the contentions raised by the appellants, it would be necessary to have a brief resume of the relevant portion of the prosecution evidence. Prosecution Evidence: 9. PW-1 Balbir Singh (Injured-Complainant) stated that on 28.4.2005, he was coming from Jammu by driving the bus bearing registration No. JK02T-6443 towards Kathua. The deceased Santokh Singh was Conductor of that bus. He stopped the bus at Chhan Rorian to deboard the passengers. A woman, who was not travelling in the bus, came to him from outside near the driver window and told him that the Conductor of the bus has been caught hold in the bus and is being beaten and has fallen down. On this, he left his seat and went inside the centre of the bus and saw that the deceased had sustained grievous injuries. The deceased asked him to take him to the hospital. He does not know as to who had beaten the Conductor because nobody was there. The accused persons had fled away from the spot. He had not seen the accused either in the bus or while they were beating the deceased. Neither he knows who had beaten the deceased nor deceased told him as to who had beaten him. He was declared hostile by Add. Public Prosecutor. During cross-examination by Add. Public Prosecutor, he stated that the deceased was a Conductor with him for the last 7/ 8 years. The owner of the bus was Ranjit Singh. No hue and cry was raised during the quarrel in the bus. He was declared hostile by Add. Public Prosecutor. During cross-examination by Add. Public Prosecutor, he stated that the deceased was a Conductor with him for the last 7/ 8 years. The owner of the bus was Ranjit Singh. No hue and cry was raised during the quarrel in the bus. If the said lady had not informed him, he would not have come to know about sustaining of injury by the deceased. He took the deceased to Kathua hospital in the same bus. Thereafter, the Police came there in the hospital and on the same night at 10 PM the deceased succumbed to his injuries in the hospital. He did not lodge the report relating this occurrence in Kathua Police Station but the Police came in the hospital and he narrated the same story before the Police, which he has narrated before the Court. He denied the substantial and material part of FIR and also stated that the accused Pawan Kumar and Onkar Nath had not confessed their guilt and no disclosure statement was ever recorded relating to drat and kirch. Neither drat nor kirch was recovered in his presence nor brought before him. He denied that the seizure memos relating to drat and kirch were prepared in his presence, though he identified his signatures but Police had not recovered anything in his presence. The contents of disclosure statements were also denied by him. 10. PW-2 Dharam Singh stated that the memo of receipt of dead body was signed by him. He identifies the same, it is already marked as EXT -P-2. 11. PW-4 Bhajan Singh stated that the accused persons present in the court are known to him. He went to hospital at Kathua, where Rajbagh police had also arrived. So many villagers including Numberdar-Dharam Singh were with him. Dead-body of the deceased was given to him for last rites and his signatures were obtained and clothes of the deceased were also seized. 12. PW-5 Nand Kishore, Patwari of village Kishanpur Kandi stated that in the year 2005, he was posted as Patwari Kishanpur Kandi. He had prepared site plan (EXPW-NK) and issued Khasra Girdawri (EXPW-NK/1). 13. PW-6 Shiv Nandan Khajuria stated that neither he knows nor identifies the accused persons. It happened in October-November 2004 and he does not know what had happened on that day. He had prepared site plan (EXPW-NK) and issued Khasra Girdawri (EXPW-NK/1). 13. PW-6 Shiv Nandan Khajuria stated that neither he knows nor identifies the accused persons. It happened in October-November 2004 and he does not know what had happened on that day. He was declared hostile by A.P.P. During cross-examination by A.P.P. he stated that it is correct to say that on 28.04.2005 he was sitting on a culvert on the National Highway and four persons had come from Jammu on motorcycle. It is also correct to say that their names are Onkar Nath alias Fongri, Rakesh Kumar, Manohar Lal alias Labbu and Pawan Kumar alias Balla. Labbu was his friend, due to which he knows the others. He had taken those four persons to his home and had offered them salted rice. Those four boys during conversation had told him that they were beaten by conductor of bus No. 6443/ JK02T and they want to beat him. He again stated that nobody told him to kill Ashoka. He again stated that he had forbidden them not to do so. Thereafter, the witness left and all the four boys had gone back towards Samba by scooter. The said four boys had come to him but the accused persons present in the court are not the same persons. He came to know that some quarrel took place and in consequence of quarrel, one Sikh boy was killed. During cross-examination, he stated that the accused persons, who were facing trial, were not known to him and he also does not know their names, parentage and residence. It is not correct to say that the accused, who were present in the court had come to him along with Labhu while he was sitting on the culvert of the road and had not told him about the killing of deceased Ashoka. He further stated that even no conversation was made by them with the witness about killing of Ashoka. 14. PW-7 Manohar Lal in his examination-in-chief stated that he neither knows nor identifies the accused, who are present in the court. He was appearing in the court pursuant to the summons issued by the court. He does not know anything about the case. He was declared hostile and cross-examined by Learned P.P but no incriminating material could be extracted during cross-examination. 15. He was appearing in the court pursuant to the summons issued by the court. He does not know anything about the case. He was declared hostile and cross-examined by Learned P.P but no incriminating material could be extracted during cross-examination. 15. PW- 8 Bachan Lal stated that he knows the accused persons, who are present in the court. He was coming to Kathua alongwith Mohinder Singh, who had asked him to go to Kathua, so he accompanied him. They were travelling in the bus. He does not know the name of the place of occurrence. The same might be near Samba. There was altercation between the accused and conductor with regard to fare of the bus and accused quarreled with the deceased. Accused were having weapons and they beat the accused and fled away from the spot. 15/ 20 passengers, who were in the bus, also ran away from the spot. He and Mohinder Singh also got aside from the bus. He had not seen accurately but injuries were on chest and arm. Thereafter, the injured was taken to Police Station by bus wherefrom he was referred to hospital. The injured had died. Accused had drat and kirch, thereafter he alongwith Mohinder Singh came to the house of Bhola. After that they were called by the police and their statements were recorded. During cross-examination, he stated that neither he knows the names of the accused today nor knew their names at the time of occurrence. He has seen the accused in the court after occurrence for the first time. His statement was recorded 7/8 days after the occurrence in the Police Station and statement of Mohinder Singh was recorded on the same date. They were called by the police and they had gone to Police Station at 11:00 or 11:30 AM and remained there till 4 PM. He is an agriculturist and labourer and does not work as vehicle mechanic. Earlier, he was working in Punjab about 15 years ago, as labourer at Batala. Presently, for the last 01 year, he was working in Ismail Transport as labourer at Maika Dhabar. He is an agriculturist and labourer and does not work as vehicle mechanic. Earlier, he was working in Punjab about 15 years ago, as labourer at Batala. Presently, for the last 01 year, he was working in Ismail Transport as labourer at Maika Dhabar. He had not told the police that the said Mohinder Singh had brought him by saying that he had to go to house of Bhola and he had not stated in his statement that he alongwith Mohinder had stayed at Kathua in the house of Bhola on the night of occurrence. He had told the police that they were travelling in that bus to see Bhola. Mohinder had told him that Bhola’s vehicle was out of order and we had to enquire from him. He did not know the place where the said vehicle was lying out of order and he also does not know the registration number of that vehicle. They did not go to the place where vehicle was lying but they directly reached at the house of Bhola. Thereafter, he did not go to the place where vehicle was lying and did not repair. It is not mentioned in his statement recorded by the Police that they were going to Kathua to meet Bhola and also it is not mentioned that they stayed at night in the house of Bhola. If it has been recorded in his statement that Mohinder Singh brought him for repair of the vehicle, the same is not correct. Due to fear, they went aside from the place of occurrence. The quarrel continued for about half an hour to an hour and the accused persons ran away by a scooter after beating the deceased. He and Mohinder Singh went to the deceased at the place of occurrence and gave him water. The deceased was lying in the bus, who was taken to Police Station, Rajbagh. He alongwith Mohinder Singh accompanied the deceased to Police Station, thereafter, he was taken to hospital. He and his colleague Mohinder went to Samba hospital. The statement recorded u/s 161 Cr.PC attributed to him that at the time of occurrence another bus came and they boarded that bus and went to Rajbagh Jasrota and they repaired the vehicle and on the same night they went to R. S. Pura, is not correct. He and his colleague Mohinder went to Samba hospital. The statement recorded u/s 161 Cr.PC attributed to him that at the time of occurrence another bus came and they boarded that bus and went to Rajbagh Jasrota and they repaired the vehicle and on the same night they went to R. S. Pura, is not correct. He further stated that he and Mohinder did not stay at the house of Bhola and went back to their respective homes. Mohinder went to his home and he went by separate vehicle and did not stay at Kathua. He does not know the name of the deceased till date. If police had mentioned the name of the deceased in his statement, it has been done by the police on its own. After that he went to his work and till recording his statement, he did not disclose the occurrence to any other person. First time he made the statement before the police and then left for home. 16. PW-9 Mohinder Singh stated that the accused persons present in the court are known to him. He was travelling in the bus coming from Satwari and when he reached at Channi Kishanpur before Rajbagh, the conductor asked the accused for bus fare, quarrel started between them. The accused said they will pay bus fare ahead. Conductor again demanded bus fare and stopped the bus to deboard the passengers. The accused attempted to bring down the deceased from the bus and when they failed to take him out, accused attacked the conductor with a kirch and drat. They gave 4/5 blows and he received injuries on arms and heart, due to which he died on the spot. The name of the conductor was Santokh Singh and he was known as Ashoka. Accused fled away from the spot and driver took the vehicle to Police Station Rajbagh. Thereafter, the police took the injured to the hospital. The registration number was JK02T- 6443. During cross-examination, he stated that he has been a transporter for the last 20 years and previously he was driver, thereafter he purchased his own vehicle. He boarded the bus from Satwari and 10/15 passengers were in the bus but he does not know them. He had paid bus fare of Rs.15/20. It happened about 5/6 years ago. When the driver took the vehicle in Police station, he also had gone along with his associate. He boarded the bus from Satwari and 10/15 passengers were in the bus but he does not know them. He had paid bus fare of Rs.15/20. It happened about 5/6 years ago. When the driver took the vehicle in Police station, he also had gone along with his associate. They had stayed at police station for about an hour and thereafter they went to hospital alongwith deceased. They reached the police station at about 7:00 PM and from there they reached hospital at 8:30/ 9:00 PM and remained there for about ½ or ¾ hour alongwith Bachan Lal and driver. From Kathua hospital he made a phone call to his friend Bhola who was also his relative, who came with a vehicle. Thereafter, he along with Bachan Lal and bus driver went in the vehicle of Bhola. He stayed at the house of Bhola who was resident of Kathua along with Bachan Lal. They had come only to see him and if he had not to see Bhola, he would have never come in the vehicle 6443/ JK02T on the day of alleged occurrence and Bachan Lal would not have been with him. Thereafter he alongwith Bachan Lal went back to Jammu on the next morning at about 10/11 AM. Thereafter he never visited police station or hospital regarding that case. Police called him and Bachan Lal after 15/20 days of the occurrence and recorded their statements. Deceased was not his relative, though he knew him for the last 10/12 years. He told about the occurrence to the Police after 15/20 days of the occurrence when his statement was recorded and he did not disclose the same to anybody else. He knows the residence of the deceased but he does not know his brother. He did not disclose the occurrence to the family members of the deceased at his home. Police did not enquire from them the purpose for which they were travelling in the bus and what was their destination. Neither he nor Bachan Lal narrated this fact before the police. If police has written any other reason in their statements for coming to Kathua that may have been written by the police on its own but he had not told the same. He does not know the name of the accused on the alleged day of occurrence but he identifies them by face. If police has written any other reason in their statements for coming to Kathua that may have been written by the police on its own but he had not told the same. He does not know the name of the accused on the alleged day of occurrence but he identifies them by face. He also does not know the parentage and residence of the accused persons. He does not remember whether he had recorded in his statement before the police that he identifies the accused by face or not. He and Bachan Lal did not make any effort to save the deceased from the accused because accused had draat and kirch in their hands. One accused was having kirch and two were having draat in their hands. He cannot say which of the accused had kirch and which of the accused had draat. The quarrel continued for 3/4 minutes. The driver had come out of the vehicle and was present near the occurrence. He too had received some injuries. 17. PW-10 Constable Naresh Kumar stated on 05.5.2005, he alongwith SHO went to Tehsil Samba. Besides him, other police personnel were also with SHO. When they reached Gurah, a scooter was parked on the side of the road. The said scooter was seized. Seizure memo (EXT-10-NK) was prepared. The said scooter was without registration number and was used in the commission of the offence. 18. PW-11 Inder Pal Singh stated that the accused persons present in court are known to him. On 05.05.2005, he alongwith SHO Tripathi and other police officials had gone to village Gurha, Tehsil Samba in connection with the murder case and accused Onkar Nath was arrested there. One scooter was recovered which was used in the murder case. Seizure memo (EXT-NK) with regard to the scooter was prepared by SHO I/O. In cross examination, he stated that he had not seen any accused while using the scooter in any offence. 19. PW-14 Dev Raj stated that the accused persons present in court are known to him. About 7/8 years ago, he was harvesting wheat through tractor. One police vehicle came there and people who were working in other fields ran away. After 5/10 minutes, 02 constables reached there and asked him to come with them because they had to recover the drat and kirch on the instruction of the accused. About 7/8 years ago, he was harvesting wheat through tractor. One police vehicle came there and people who were working in other fields ran away. After 5/10 minutes, 02 constables reached there and asked him to come with them because they had to recover the drat and kirch on the instruction of the accused. Drat was lying on the bank of the canal near the bridge and kirch was also lying there. He saw the kirch and drat and identified both, shown to him in the court. The seizure memo of the kirch (ExT-P14) was proved by him. The contents of seizure of drat(ExT-P14/1) was also proved by him. During cross examination, he stated that the seizure memo was prepared on spot. ExT-P14 and Ext-P14/1 were prepared by the Police and he signed the documents. Besides him none had signed the same. 20. PW-15 Shashi Pal stated that the accused persons present in the court are known to him. On 06.5.2005, he along with FSL team, visited Raya village and he took the photographs there. They pertain to 01 kirch and 01 drat. 10/15 Police personnel were present there but he does not know their names. He had taken the photographs of drat and kirch. The kirch was lying in the wheat husk and drat was lying outside. Both the weapons were Marked as “A” and “B” respectively. Drat and kirch have been shown to him in the court, which he identifies. 21. PW-17 Ashwani Kumar in his examination-in-chief stated that accused persons present in court are known to him. He had kept drat in his shop for sale and besides that he had cold drink and cigarettes etc. in his shop. Accused had purchased drat from his shop in the evening and he was called by the Police the next day in connection with the drat. He was asked by the SHO whether he had sold that drat. Police had not recorded his statement. He could not identify that drat and he cannot say whether the drat shown to him in the court was same which he had sold. There was no such drat at his shop which has been shown to him in the court and he had not sold any such drat. In cross-examination, he stated that he has seen the accused first time today in the court. 22. PW-18 Dr. There was no such drat at his shop which has been shown to him in the court and he had not sold any such drat. In cross-examination, he stated that he has seen the accused first time today in the court. 22. PW-18 Dr. Bodh Raj Kundal proved the post-mortem report EXTP-BRK and opined that the deceased died due to injury to the heart. In cross-examination stated that he was not shown the weapon of offence by the Police. 23. PW Ranjit Singh is a witness to the seizure memo of blood, shoe and patka. He proved the same. 24. PW-19 Tej Krishan Bhat stated that in the year 2005 he was posted as Tehsildar Hiranagar and the packets were resealed by him and letter of authority was also signed by him. 25. PW-22 Dr Virinder Singh Jamwal was part of Medical Board constituted for conducting postmortem. He identified his signatures on the post mortem report. In cross-examination stated that the post mortem report is in the hand-writing of Dr. Bodh Raj Kundal. 26. PW-24 Kuldeep Raj stated that he knows the accused. On 28.04.2005, he was posted as SHO Police Station, Rajbagh and in the evening one Balbir Singh driver of bus bearing registration No. 6443 JK02T lodged an oral report with regard to the murder of the deceased. On receipt of said report, FIR bearing registration No. 38/2005 for offences under sections 302 RPC and 4/25 Arms Act was registered. He collected the evidence and recorded the statement of the witnesses. On disclosure of the accused, weapons of offence were recovered and he proved the offences under sections 302/34 RPC and 4/25 Arms Act against the accused. Thereafter, the witness was transferred from Police Station. The site plan is correct, it bears his signatures and it is marked as ExT-P24 and he stated the ExT-P-1, ExT PW BS, ExT P32, ExT P3/1 and ExT 10NK were prepared by him. The memo of receipt of dead body is correct, it bears his signature. The disclosure memos of weapon of offence recovered from accused Pawan Kumar and Onkar Nath are correct and are marked as ExT P24/1 and ExT P 24/2 and memos of recovery marked as ExTP-24/3 and ExTP 24/4 are also correct. During cross examination, he stated that no inquiry was conducted about the registered ownership of the scooter seized in this case. During cross examination, he stated that no inquiry was conducted about the registered ownership of the scooter seized in this case. Accused had no concern with the scooter. The occurrence had taken place in the bus and it had not occurred on the road side. He had arrayed Mohinder Singh and Bachan Lal as witnesses in the case and PW Mohinder was owner of the Bus bearing registration No. 4827 JK02B. It had also come to fore in the investigation that the said bus was booked for a tour purpose and same turned out of order at Jasrota and Bachan Lal was taken by Mohinder Singh for repairing of his bus which had been stationed at Jasrota. On the alleged day both the witnesses went to their home in the same bus which was repaired by them. The witness had recorded the statement of above said two witnesses under section 161 Cr.P.C. As per their versions, whatever they had stated, he had noted down the same in the statement recorded under section 161 Cr.P.C. It is not correct to say that Mohinder Singh and Bachan Lal had come to meet one Bhola Singh at Kathua and had stayed there. They did not made any such statement before him. As per the investigation of the witness, neither of the above PWs had gone to Police Station at Kathua nor to hospital and even they did not make any such statement under section 161 Cr.P.C. Appreciation of Evidence: 27. The prosecution in order to bring home the guilt of the appellants, relied upon the statements of the eye witnesses, disclosure memos and recovery memos, besides the medical opinion. There are five important witnesses cited by the prosecution namely PW-1 Balbir Singh (Complainant as well as Injured), PW- 6 Shiv Nandan Khajuria (he was witness to the conversation that the appellants were discussing to kill Ashoka in his house), PW-7 Manohar Lal(he was the friend of the appellants and he was also the witness to the conversation between the appellants), PW-8 Bachan Lal (Eye witness)and PW-9 Mohinder Singh (Eye witness). The most important witness as is evident from the chargesheet is PW-1 Balbir Singh. He was the person, who not only lodged FIR but also was injured in the occurrence. He had also mentioned about the characteristics of unknown assailants in FIR as they were unknown to him. The most important witness as is evident from the chargesheet is PW-1 Balbir Singh. He was the person, who not only lodged FIR but also was injured in the occurrence. He had also mentioned about the characteristics of unknown assailants in FIR as they were unknown to him. The said witness has not supported the prosecution story. Despite having been injured in the occurrence, he stated that he had not seen the accused and further that he had signed the FIR after lapse of three days. He was also the witness to the disclosure statements of the appellants, namely, Pawan Kumar and Onkar Nath and to the recovery of the weapons of offence allegedly recovered pursuant to the disclosure statements but he has neither proved the disclosure memos nor the recovery memos, as such, this witness is of no help to the prosecution. The other important witness is PW-5 Shivnandan Khajuria. Though he turned hostile but during cross-examination he stated that Labbu was his friend and he took Onkar Nath alias Fongri, Rakesh Kumar, Manohar Lal and Pawan Kumar to his home and offered them salted rice. He also admitted that four persons during conversation told him that they were beaten by conductor of bus bearing No.JK02T-6443 and they want to beat him. In the same breath, he stated that no one told him that Ashoka was to be killed. He refused to identify the accused, who were present in the Court as the same persons who had come to his residence. In cross-examination, he stated that he did not know the name, parentage and residence of the accused and also stated that they had not come along with Labbu to him. This witness has made different statements at different times and as such it is not safe to place reliance upon the said witness. PW-7 Manohar Lal alias Labbu who was another important witness, has also not supported the prosecution case. 28. Now, the two eye witnesses who have supported the prosecution case are PW-8 Bachan Lal and PW-9 Mohinder Singh. In fact, the fate of the prosecution case rests upon these two witnesses. They were the chance witnesses and if they are able to establish their presence on spot beyond doubt, then their statements can be safely relied upon for establishing the guilt of the appellants. In fact, the fate of the prosecution case rests upon these two witnesses. They were the chance witnesses and if they are able to establish their presence on spot beyond doubt, then their statements can be safely relied upon for establishing the guilt of the appellants. In Rajesh Yadav v. State of U.P., 2022 SCC OnLine SC 150, Apex Court has observed that a chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. In “Jarnail Singh v. State of Punjab”, (2009) 9 SCC 719 Apex Court has held as under: – “22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [ (1997) 4 SCC 192 ] , Harjinder Singh v. State of Punjab [ (2004) 11 SCC 253 ], Acharaparambath Pradeepan v. State of Kerala[(2006) 13 SCC 643] and SarveshNarain Shukla v. Daroga Singh [ (2007) 13 SCC 360 19 Crl A(D) No. 33/2019 a/w connected matters). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (Shankarlal v. State of Rajasthan [ (2004) 10 SCC 632 ). 23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [ (2005) 9 SCC 650 ). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned.” 29. A perusal of the statement of PW-8 Bachan Lal reveals that though he stated that the accused were having weapon with which they had beaten the accused and run away from the spot but he has not stated as to out of three accused which accused was armed with a particular weapon. Further, in his cross examination, he stated that he did not know the accused on the day of occurrence and their names were not known to him on the day, when his statement was recorded in court. He has also stated that occurrence took place for about half an hour to one hour and thereafter the accused ran away on a scooter. He had stated to the Police that they were travelling in that bus to see Bhola. When he was confronted with the statement recorded by the Police, it was found that it was not mentioned in his statement that on the day of occurrence, they were coming towards Kathua to see Bhola and they stayed at the house of Bhola in the night. He also stated that if it has been recorded by the Police that Mohinder Singh brought him for the repair of the vehicle, the same was not correct. In the same breath he stated that he and Mohinder did not stay at the house of Bhola in the night and further that he and Mohinder went to their respective homes by different vehicles. He further stated that he along with Mohinder Singh went to Police Station along with deceased and thereafter he was taken to hospital. In the same breath he stated that he and Mohinder did not stay at the house of Bhola in the night and further that he and Mohinder went to their respective homes by different vehicles. He further stated that he along with Mohinder Singh went to Police Station along with deceased and thereafter he was taken to hospital. He denied the statement recorded under Section 161 Cr.P. C. that at the time of occurrence, another bus came and they boarded that bus and went to Rajbagh Jasrota where he repaired the vehicle and on the same night, they went to R.S. Pura. 30. PW-9 Mohinder Singh was accompanying PW-8 Bachan Lal, as admitted by him and he too has made similar statement in his chief examination. In cross examination, he too deposed that after the deceased was injured, the driver took the vehicle to the Police Station and he along with his associate too went there. They stayed there for about one hour and thereafter they went to hospital with the deceased. From Kathua Hospital, he rang up his friend Bhola who came with his vehicle and he along with Bachan Lal and bus driver went away in the vehicle of Bhola. He also stated that till the time he made the statement before the Court, he was not aware about the names of the accused persons. He stated that the one accused was having kirch and the other two were having drats. He expressed ignorance as to which accused was having kirch and which accused was having drat. As per his statement, the quarrel continued for 3 to 4 minutes. He further stated that if the Police has written in his statement that he along with Bachan Lal came to Jasrota to repair vehicle, the same was not correct. 31. Statement of PW-8, Bachan Lal is full of contradictions and he has been making different statements in his deposition before the court. If the statements of both these witnesses are read together, it becomes evident that both were travelling in a bus and were proceedings towards Kathua to meet Bhola but they had denied their statements recorded by the Police wherein it was mentioned that they were going to Jasrota for repair of the vehicle. PW-8 Bachan Lal has specifically denied that he was a mechanic. PW-8 Bachan Lal has specifically denied that he was a mechanic. Both these witnesses are chance witnesses and their purpose for travelling in a bus gets disputed due to material contradictions between the statements made in the Court and recorded under section 161 Cr.P.C. PW-9 Mohinder Singh has stated that one accused was having Kirch and other two were having drats and this runs contrary to the prosecution story. Both these witnesses have stated that after the occurrence, they had travelled in a bus to the Police Station and thereafter they went to hospital but if the statement of the Investigating Officer i.e. PW 24 is to be believed, then as per his investigation neither these two witnesses went to Police Station Kathua nor to the hospital. As per the statement of PW-24 Kuldeep Raj both these witnesses had gone to Jasrota for repair of the vehicle and after the repair, both of them went to home in the same bus and it has been specifically denied by these witnesses. PW-24 Kuldeep Raj has specifically stated that this is not correct that both PWs 8 and 9 had gone to house of Bhola Singh at Kathua and stayed there at night. Moreso, both these witnesses have not disclosed about the occurrence to any one till their statements were recorded. In “State of U.P. v. Om Pal”, (2018) 5 SCC 805 , Apex Court refused to rely upon the statements of eye witnesses as their presence on spot was found to be doubtful and held as under: – “12. On the other hand, the conduct and statements of PW 2 (Dharmendra) who was stated to be an eyewitness do not inspire confidence for the reason that his depositions under Section 161 CrPC were quite different to what he stated before the Court in his examination-in-chief. He could not even give a satisfactory reason for his presence at the time and place of occurrence. Furthermore, he did not choose to lodge complaint with the police by himself even though he had witnessed the occurrence as admittedly the complaint was lodged by PW 1 on the information provided by PW 2. He could not even give a satisfactory reason for his presence at the time and place of occurrence. Furthermore, he did not choose to lodge complaint with the police by himself even though he had witnessed the occurrence as admittedly the complaint was lodged by PW 1 on the information provided by PW 2. Apart from that, there were certain conflicting statements in his evidence as regards how the deceased got injuries, and also his conduct of not making a hue and cry and not disclosing to anyone about the occurrence on his way to the house of Naresh Pal, gives rise to suspicion on the credibility and trustworthiness of PW 2. When the evidence of PW 2 itself is unbelievable and jeopardising the prosecution case, in no manner the evidence of PW 1 could be given credence. 13. We are also not inclined to believe the conduct of PW 3 wife of the deceased, who was stated to be in a shock and not in consciousness for about a month after the death of her husband. We find no valid documentary or medical evidence on record in support of the claim of the prosecution that PW 3 was really in such unconscious state for about a month. Looking at the unnatural behaviour of eyewitnesses PWs 2 & 3 and their contradictory statements, it cannot be said that their evidence is genuine so as to convict the accused.” 32. More so, the statement of these witnesses were recorded on 04.05.2005 whereas date of occurrence is 28.04.2005. The Investigating Officer could not explain the delay in recording the statement of these witnesses. The witnesses too have admitted that their statements were recorded after 7 -8 days. When the witnesses are chance witnesses then the prosecution must explain as to how the Investigating Officer came to know about the said witnesses to be eye witnesses and further obligation is cast upon Investigating Officer to explain the delay in recording their statements. In the instant case, though both these witnesses have stated that they went to Police Station same day but the said fact is specifically denied by PW-24 Kuldeep Raj and in such scenario it was obligatory on the part of Investigating Officer to explain the delay in recording the statements of the chance witnesses, which Investigating Officer not been able to explain. 33. 33. In view of above, there is dispute with regard to the presence of the witnesses on spot and further there is an un-explained delay in recording the statements of these two witnesses, as it is not the case of prosecution that the witnesses were terrorized and due to that their statements were not recorded particularly when the appellants were arrested on 05.05.2005 and the statements of these witnesses were recorded on 04.05.2005. As such the statement of these witnesses cannot be relied upon for convicting the appellants. In “Shahid Khan v. State of Rajasthan”, (2016) 4 SCC 96 Apex Court has held as under: – “20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.” 34. The prosecution has also miserably failed to prove the disclosure statements pursuant to which the weapons were recovered. PW-12 Foja Singh could not be produced as he was dead but PW-1 Balbir Singh has not proved the disclosure memos of both Onkar Nath and Pawan Kumar. In absence of proof of disclosure statements, the recoveries made pursuant to the same if proved, become meaningless. PW-12 Foja Singh could not be produced as he was dead but PW-1 Balbir Singh has not proved the disclosure memos of both Onkar Nath and Pawan Kumar. In absence of proof of disclosure statements, the recoveries made pursuant to the same if proved, become meaningless. It is settled law that if the disclosure statement is not proved to have been made by the accused, then any recovery allegedly made pursuant to the said disclosure is of no consequence. PW-17 Ashwani Kumar has refused to identify the drat that he allegedly had sold to the accused. 35. We have gone through the judgment of the learned trial Court. The learned trial Court has mainly relied upon the statements of PW-8 Bachan Lal and PW-9 Mohinder Singh which in the opinion of this Court was not warranted particularly, in view of the fact that their presence on spot was not established beyond doubt by the prosecution. The learned trial Court despite the fact that the disclosure statements were not proved by the prosecution has come to the conclusion that the recoveries of the weapons of offence were made from the accused and this finding, in our view, is not sustainable. The learned trial Court has also placed reliance upon the statement of PW-6 Shivnandan Khajuria but in our opinion, no reliance should have been placed upon the testimony of the said witnesses in view of the fact that he had not identified the accused in the Court and had made different statements at different stages before the trial court. Result: 36. For the aforesaid reasons, both the appeals deserve to be allowed and are, accordingly, allowed. The judgment of conviction dated 25.04.2019 and order of sentence dated 27.04.2019 passed by the court of learned Additional Sessions Judge, Kathua in file No.108/14/12 titled “State versus Onkar Nath & Ors.” is set aside. The appellants are hereby acquitted of the charges and they are ordered to be set at liberty forthwith if not required in any other case. The challan stands dismissed. 37. Reference is answered accordingly. 38. Record of the trial court be sent back forthwith along with copy of this judgment.