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2022 DIGILAW 740 (JK)

Ram Dayal v. State of J&K

2022-12-23

PUNEET GUPTA, RAJNESH OSWAL

body2022
JUDGMENT : RAJNESH OSWAL, J. 1. The appellants were convicted vide judgment dated 22.03.2008 passed by the learned Principal Sessions Judge, Jammu (hereinafter to be referred as the trial court) for commission of offence under section 302 RPC, read with Section 34 RPC, appellant No. 1 was further convicted for commission of offence under section 4/25 Arms Act and vide order dated 24.03.2008, the appellants were sentenced to rigorous imprisonment for life and to pay a fine of 25,000/- for commission of offence under section 302 RPC and in default of payment of fine, the appellants were further directed to undergo imprisonment for a period of six months. The appellant No. 1 was also sentenced to rigorous imprisonment for a period of one year and to pay a fine of Rs. 10,000/- for commission of offence under section 4/25 Arms Act and further imprisonment for three months in the event of default in making payment of fine. 2. The judgment and the order of sentence have been assailed by the appellants in this appeal on the grounds that the evidence led by the prosecution did not connect the appellants with the alleged commission of crime and further that the material witnesses were not associated with the investigation and that there are different versions with regard to the recoveries. It is also stated that the weapon was blood stained but in fact the weapon, which was sent to FSL, was not blood stained. 3. Mr. Sunil Sethi, learned senior counsel appearing for the appellants vehemently argued that the eye witnesses have not supported the prosecution case and further the recovery of the weapon of offence is also not proved and rather there is dispute as to whether the weapon of offence allegedly recovered was used in the commission of offence or not. He also laid stress that the motive remained unproved as the girl with whom the prosecution alleged the appellant No. 1 and deceased to have relations has not been associated with the investigation. Precisely, the argument of Mr. Sethi is that the prosecution has miserably failed in its duty to prove the case beyond the reasonable doubt against the appellants and in fact there was no evidence against the Appellant No. 2. 4. Per contra, Mr. Rahul Sharma, learned Dy. Precisely, the argument of Mr. Sethi is that the prosecution has miserably failed in its duty to prove the case beyond the reasonable doubt against the appellants and in fact there was no evidence against the Appellant No. 2. 4. Per contra, Mr. Rahul Sharma, learned Dy. AG appearing for the respondent has vehemently argued that the prosecution has led cogent evidence to prove all the incriminating circumstances against the appellants and the recoveries from the appellants were also proved. Therefore, there is no illegality or perversity in the judgment passed by the learned trial court, as such, the appeal warrants its dismissal. 5. Heard and perused the record. PROSECUTION CASE 6. The facts as they stem out from the charge sheet are that a docket was sent by ASI Abdul Aziz for registration of FIR with Police Station, Domana on 28.04.1996 that was received at 1500 hours in the Police Station. It was mentioned in the docket that he along with Krishan Lal and Survesh were on patrolling duty when a dead body was found in a nallah at Village Deode-Kubbe. The dead body was taken out from the nallah and there was deep cut in the neck and other injuries on neck and head of the dead body, these were injuries caused by a sharp-edged weapon. On receipt of this docket, FIR No. 60/1996 for commission of offence under section 302 RPC was registered. The investigation commenced and during the course of investigation, the Investigating Officer prepared the site plan of the recovery of the dead body and also got conducted the photography of the dead body. The dead body was taken into custody by the Police and thereafter post-mortem was also conducted. The clothes worn by the deceased were also seized. The dead body was handed over to the legal representatives of the deceased for performance of last rites. The statements of witnesses were recorded under section 161 Cr.P.C. and site plan of place of occurrence was also prepared. Further offences under section 4/27 Arms Act and Section 34 RPC were also added. The accused were arrested and during personal search of Bishan Dass, one broken gold chain with locket having inscription “LS” was recovered. The appellant Ram Dayal made the disclosure statement with regard to the weapon of offence (khokhri) and the same was recovered at the instance of appellant Ram Dayal. The accused were arrested and during personal search of Bishan Dass, one broken gold chain with locket having inscription “LS” was recovered. The appellant Ram Dayal made the disclosure statement with regard to the weapon of offence (khokhri) and the same was recovered at the instance of appellant Ram Dayal. Disclosure memo and recovery memo were prepared. The weapon was got resealed and thereafter was sent to FSL. During the investigation, it transpired that Ram Dayal was having relations with one Miss X (Name withheld). The deceased Lochan Singh had been working in Karloop Academy as private teacher for the last 3-4 months. On the day of occurrence, accused Ram Dayal saw the deceased and Miss. X talking to each other. Ram Dayal got annoyed and he also called Bishan Dass, as they were close friends. Both the appellants pursuant to the well-knit plan, as the deceased also was having relations with Miss X, followed Lochan Singh and when he reached near nallah at Deode-Kobbe, appellant Bishan Dass caught hold the hair of Lochan Singh and Ram Dayal assaulted the deceased at his neck with khokhri. Appellant Bishan Das snatched gold chain from the deceased. Deceased jumped into the nallah and Ram Dayal also jumped in the nallah and on the other bank of nallah, Ram Dayal assaulted the deceased at his neck and head and other parts of the body and killed him. 7. After the completion of the investigation, the Investigating Officer established the offences under section 302/34 RPC and 4/27 Arms Act against both the appellants. The charge sheet was laid before the Chief Judicial Magistrate, Jammu on 12.07.1996 and the same was transferred to the learned trial court. The learned trial court framed the charge under sections 302 RPC and 4/25 Arms Act against Appellant No. 1 and under sections 302/34 RPC against Appellant No. 2. The prosecution cited as many as 22 witnesses out of which 21 were examined and one PW-13 Krishan Lal was given up by the prosecution. After the conclusion of prosecution evidence, the incriminating evidence was put to both the appellants. The appellants did not lead any evidence in their defence and after hearing both the parties, the learned trial court convicted the appellants by virtue of judgment impugned. 8. After the conclusion of prosecution evidence, the incriminating evidence was put to both the appellants. The appellants did not lead any evidence in their defence and after hearing both the parties, the learned trial court convicted the appellants by virtue of judgment impugned. 8. The prosecution had banked upon the evidence of two eye witnesses i.e. PW-1 Kashmir Singh and PW-2 Suraj Prakash to nail down the appellants but both these witnesses did not support the prosecution during trial as they turned hostile. Despite cross-examination by the Public Prosecutor, no incriminating material against the appellants could be extracted from them. 9. In absence of eyewitness version of the occurrence, the prosecution relied upon the circumstantial evidence to bring home the guilt of the appellants. The prosecution has relied upon the following circumstances to seek conviction of the appellants: (i) That the Appellant No. 1-Ram Dayal made disclosure statement that he had concealed the weapon of offence i.e. khokhri at the bank of water channel in the bushes at Deode-Kubbe and the said weapon of offence was recovered at the instance of Appellant No. 1, Ram Dayal. (ii) That one broken gold chain with locket having inscription “LS” belonging to the deceased Lochan Singh was recovered from the personal search of the Appellant No. 2-Bishan Das. (iii) That the injuries found on the body of the deceased could have been caused by the weapon of offence i.e. khokhri. (iv) That Appellant No. 1- Ram Dayal had been nurturing enmity against the deceased because both of them were having relationship with Miss X and conveyed veiled threat of bad result to PW-8, Sher Bahadur Singh. 10. A reference may be made to decision of Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 wherein it was held that before conviction could be based on circumstantial evidence, the following conditions must be fully established: (a) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (b) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (c) the circumstances should be of a conclusive nature and tendency. The circumstances concerned 'must' or 'should' and not 'may be' established. (b) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (c) the circumstances should be of a conclusive nature and tendency. (d) they should exclude every possible hypothesis except the one to be proved. (e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 11. Before we proceed further to appreciate the rival contention of the parties, we deem it proper to have relevant portion of the prosecution evidence. PROSECUTION EVIDENCE 12. PW-3 Daulat Ram who was cited as a witness to the seizure of the dead body has not supported the prosecution but he admitted his signatures on the seizure memo of the dead body. PW-4 Pritam Chand has stated about the seizure of the dead body by the Police from the nallah. 13. PW-5 S. Harbhajan Singh S/o Dalip Singh (father of the deceased) stated that his son was 18 years and 6 months of age at the time of his murder and he was working as a teacher in a private Academy. That Academy was opened by Puran Chand. On 26.04.1996, the deceased went to the Academy but did not return. When he came back in the evening from his office, he started searching for his son. He searched at various places but could not find him. On 28.04.1996, he went to Academy to enquire about his son. Puran Chand told him that on 26.04.1996 he had given Rs. 700/- to the deceased for purchasing books but he did not come to the Academy thereafter. He along with Master Harbhajan Singh and Sher Bahadur Singh went for searching the deceased. When they reached Datrayal, Kobbe Deode, they saw Police and number of persons. They saw the dead body of his son which was smeared with soil and was having injuries. Almost whole of the throat was chopped of except the little part. Police seized the dead body and thereafter the same was handed over to him. Police also seized the clothes and Rs. They saw the dead body of his son which was smeared with soil and was having injuries. Almost whole of the throat was chopped of except the little part. Police seized the dead body and thereafter the same was handed over to him. Police also seized the clothes and Rs. 757/- from the deceased. He proved the seizure memo. He also knew the accused- Bishan Dass and from his search, one gold chain having a locket and Rs. 55/- were recovered. The locket was of his son Lochan Singh and “LS” was inscribed on it. Search memo was prepared. He proved the search memo. He had told the Police that the locket recovered from Bishan Dass, was of his son. The personal search of accused Ram Dayal was also conducted but nothing was recovered. He proved the search memo. He identified the locket recovered from the accused. While searching his son on 27.04.1996, he had gone to the house of his brother-Sher Bahadur and had informed him that his son had gone on 26.04.1996 but did not return. Then his brother Sher Bahadur told him that he might have been killed. His brother told him that on 21.04.1996 at 1/2 P.M., he had gone to the house of his relative at Gol Gujral and from there, he had to go to Marh and while he was waiting for a vehicle at Talab Tillo Chungi at around 1 to 2 P.M. He saw Lochan Singh going towards Jammu on his scooter with one girl as pillion rider. Lochan Singh on seeing his brother stopped and on enquiry about the girl, he told him that the house of that girl was situated in front of the academy. In the meanwhile, both Ram Dayal and Bishan Das also came there on motorcycle and told his brother Sher Bahadur Singh that he should advise the deceased Lochan Singh. During cross examination, he stated that he had gone to the house of his brother at Nanak Nagar after 11 A.M. and had not gone to the Academy on 27.04.1996. He also met Puran Chand and after half an hour, he returned to his house where his brother-in-law Harbhajan Singh and brother Sher Bahadur had already arrived. Thereafter, all of them went to search the deceased towards Marh. He also met Puran Chand and after half an hour, he returned to his house where his brother-in-law Harbhajan Singh and brother Sher Bahadur had already arrived. Thereafter, all of them went to search the deceased towards Marh. At village, Datrayal, they were told that the Police had gone to Kobbe Deode and people from 3 to 4 villages had gathered there. They reached there at 2:30-3:00 P.M. The Police including SHO, ASI and some constables were present there and dead body was in the nallah, which was about 8 yard wide. The water in the nallah where the dead body was lying was less than half feet. Nearly 150 persons had gathered there. On seeing the dead body only, he came to know that it was of his son Lochan Singh. The Police had recorded his statement on 15.05.1996 at the place where the accused were hiding. Earlier also he had been going to Police Station and after interacting with the Police, they used to come back. The Police had not enquired anything about the occurrence from him. He had not stated before the Police about the incident narrated to him by his brother Sher Bhadhur Singh. Prior to the occurrence, deceased had told him that some boys residing near the academy were threatening him though he had not named anyone of them. It is correct that his son was being threatened by those boys as he was having relations with a girl, who was residing near the academy. On 15.05.1996 at about 5 P.M., he was told by the Police that they had got a clue, so they should accompany them for apprehending the accused. They accompanied the Police upto distance of 15-16 kms to the village Karloop. The accused were arrested from a cattle shed where they were hiding. It was dark and the place of arrest was out of the village Karloop. The Lamberdar and Chowkidar were not summoned. The Police party comprised of SHO, ASI and 7-8 constables. ASI and 3-4 constables entered the hut. Accused persons tried to run away but they fell down. ASI Abdul Aziz searched the accused persons. Before search he got himself searched by them. He was having a wallet containing money and some papers. ASI prepared all the documents on spot and got them signed from them. 14. ASI and 3-4 constables entered the hut. Accused persons tried to run away but they fell down. ASI Abdul Aziz searched the accused persons. Before search he got himself searched by them. He was having a wallet containing money and some papers. ASI prepared all the documents on spot and got them signed from them. 14. PW-6 Harbhajan Singh S/o Bishan Singh stated about the missing of Lochan Singh from his academy where he was employed. He had also gone to the nallah where from the dead body of the deceased was recovered. Police seized the clothes of the deceased. He proved the seizure memo of the clothes of the deceased (Ext.PW-HS) and also proved the receipt of the dead body (Ex.PW HS/1) whereby the dead body was handed over to the father of the deceased. He further stated that on 15.05.1996 he had gone to the Police Station and Police took them to Karloop after informing them that they had got a clue so they should accompany them. Police arrested two persons from a kula in a jungle. Police conducted the personal search of the both the persons. Locket of the deceased was identified by the father of the deceased and Rs. 50/55 were recovered from Bishan Dass. He proved the search memo (Ext.PW HS/2) and also identified the locket in the court. In cross examination, he stated that while going towards the kula, they had not passed through the village but they straightway went to the kula. There was dark at that point of time. He had not seen the locket worn by anyone. As the father of the deceased had identified the locket, so he identified. The locket was not having any identification. He cannot say about the dimension of the kula, as he had not gone inside the kula. 15. PW-7 Charan Singh proved the receipt of the dead body (Ext.PW HS/1) whereby the dead body was handed over to the father of the deceased. 16. PW-8 Sher Bahadur Singh stated that deceased was his nephew and working as a teacher in academy at Karloop. On 21.04.1996 he had gone to meet his relatives and thereafter went to his parents at Marh Bagh. While he was standing at Tillo Bouri Chowk, his nephew came on a scooter with a girl as pillion rider and they were going towards city. He felt embarrassed on seeing them. On 21.04.1996 he had gone to meet his relatives and thereafter went to his parents at Marh Bagh. While he was standing at Tillo Bouri Chowk, his nephew came on a scooter with a girl as pillion rider and they were going towards city. He felt embarrassed on seeing them. On enquiry, he told him that the girl resided in front of the academy. In the meanwhile, accused Ram Dayal and accused Papa also came there on the motorcycle and asked him Uncle you should advise your nephew otherwise consequences would not be good. On that, he warned Lochan Singh. Both accused Ram Dayal and deceased Lochan Singh loved that girl. He then boarded the girl in the bus that was going towards the city. He along with his nephew returned to home. Later on dead body of the deceased was found on 28.04.1996. In cross examination, he stated that the Police had recorded his statement 7/8 days after the dead body was recovered. He had not mentioned the parentage of the accused in his statement recorded under section 161 Cr.P.C. He expressed ignorance as to how the Police had mentioned the same in his statement. He did not narrate the incident and his interaction with the accused persons to anyone from 21.04.1996 to 28.04.1996 but had narrated that incident to his brother on the day when the dead body was recovered and thereafter he made the statement before the Police. 17. PW-9 Puran Chand stated that Lochan Singh was working in his academy at Karloop. On 26.04.1996 he had given a sum of Rs. 700/- to the deceased for bringing books for 7th class. On Sunday, the father of the deceased told him that his son had not returned home since 26.04.1996. In cross examination, he stated that his father had come to him at noon on 28.04.1996. 18. PW-10 Deva Singh stated that 5/6 years back, he was going to Kubbey-Deode for purchasing horse. He had seen the accused persons fighting with a Sikh boy near a channel. He enquired but accused Ram Dayal kept his hand on his lower back. He got scared thinking that accused might have kept something and left the place. He went to Marh where he came to know that a Sikh youth had died. He went to the house of the father of the deceased who was known to him. He enquired but accused Ram Dayal kept his hand on his lower back. He got scared thinking that accused might have kept something and left the place. He went to Marh where he came to know that a Sikh youth had died. He went to the house of the father of the deceased who was known to him. He was told that murder had taken place so, he thought that it might be the same boy who was fighting. In cross examination, he stated that fight had taken place in the month of Bisakh some 5/6 years back. The Police had recorded his statement 10/15 days after he had gone to the house of the deceased. 19. PW-11 Subash Kumar stated that on 23.05.1996 he had gone to Police Station where in his presence accused Ram Dayal on enquiry by SHO stated that he had committed the murder and kept the khokhri at village Kubbey Deode where the murder was committed. He proved the contents of the disclosure statement (Ext PW-SS). Thereafter, the accused was taken to the spot. He and others too accompanied the Police. The vehicle was parked at a brick kiln from where they had gone on foot to a nallah. In the nallah accused brought out a khokhari from the bushes and handed over to the SHO. He proved the contents of the seizure memo (ExtPW-SS/1) but he could not identify the khokhri shown to him in the court saying that he had seen it from a distance. In cross examination, he stated that he cannot say from which place Police had brought out the khokhri. He and witnesses had not gone to the place of recovery, as none asked them to go there. They were standing away at distance of 15/20 feet. The accused did not depose about the murder in his presence. He identified Bishan Dass as an accused, who had made the disclosure statement. 20. PW-12 PW Swarn Singh stated that on 23.05.1996, he was sitting in the room of SHO where he had gone in connection with timber for his saw mill. Other two boys were also sitting there. SHO called accused Ram Dayal from outside and asked him to narrate what he had earlier stated about the occurrence. Accused stated that he was having affair with some girl. Other two boys were also sitting there. SHO called accused Ram Dayal from outside and asked him to narrate what he had earlier stated about the occurrence. Accused stated that he was having affair with some girl. However, another boy intruded so he killed him by inflicting cuts with a khokhari. SHO asked as to whether he can show the place where khokhri had been concealed. The reply was in affirmative. A memo was prepared and was signed by him (Ext PW SS). The other two boys present there had also signed the memo. Accused replied that he can take the police to that place. Accused then took the police to Deodey Kubbe and he also accompanied the police. Police had taken 2/3 Sikh youths enroute. The vehicle was then stopped at a brick kiln from where they walked on foot for 15/20 minutes where the accused brought out a khokhri from bushes at the side of a channel and produced before the police. A memo about seizure of the khokhri was prepared. In cross examination, he stated that the brick kiln was about 8/10 kms away from the Police Station. He reached the Police Station at 2:00 P.M. or 2:30 P.M. and at the place of recovery at 4:00 or 4:30 P.M. He had gone to village Deode Kubbe for the first time on that day. The Police had stopped the vehicle 3/4 kms short of the kiln and had called those Sikh persons from there. Some other persons were passing by the place of recovery. Place of recovery was the bank of a nallah and not a thoroughfare. The seizure memo was got signed by those 4/5 persons who were lifted enroute. It is correct that the contents of disclosure statement and recovery memo were not read out to him and others. 21. PW-14 Hardutt Singh stated that on being asked by the SHO telephonically, he along with 4/5 others came on the road at 4.00PM from where SHO took them in his vehicle about 1/2 kms away. All of them alighted from the vehicle and followed accused Ram Dayal. Ram Dayal (accused) took them across the fields to a watercourse. Bushes were growing there and accused Ram Dayal brought out a parthi from those bushes. The parthi was stained with blood. Police seized and sealed the parthi there only and recorded his statement. All of them alighted from the vehicle and followed accused Ram Dayal. Ram Dayal (accused) took them across the fields to a watercourse. Bushes were growing there and accused Ram Dayal brought out a parthi from those bushes. The parthi was stained with blood. Police seized and sealed the parthi there only and recorded his statement. Police obtained his signature and signatures of two others accompanying them. He proved the contents of recovery memo (ExtPW SS1). In cross examination, he stated that the Police had told him that the accused had made a statement about concealing the weapon of offence near the water channel. The Police had handed over the seal after sealing the khokhri to their own persons and had obtained his signatures as well. He is farmer and it is correct that khokhri, dah, parthi and dershi are different kinds of weapons. The weapon recovered was khokhari and not parthi. The accused had inserted him arm in the bushes and pulled out the khokhari. The people from the villages were witnessing the police but none had come on the spot. The Police had not summoned anyone to come on spot. His village falls at a distance of 2/1/2 kms away from the place of recovery. He has been doing the farming for the last 35/40 years and they consider parthi and khokhri as one. The same weapon is called as parthi as well as khokhri. Such parthis are generally kept by the farmers. 22. PW-15 Matwal Singh stated that in May 1996, he had accompanied Lamberdar Hardutt Singh to Marh road from where police had taken them in their vehicle to a brick kiln. At the brick kiln. all of them alighted from the police vehicle. Accused Ram Dayal was also accompanying them. Accused led all of them to the bank of a water channel at Deode Kubbe. Accused took the police ahead and brought out a khokhari from bushes. Accused showed khokhari to them which was stained with blood and then gave it to police. Police sealed the khokhari in a cloth and prepared a seizure memo of khokhari. He proved the recovery memo (ExtPW-SS/1). In cross examination, he stated that they were not disclosed about the purpose for going there and on being asked by him the Police disclosed the purpose. Police sealed the khokhari in a cloth and prepared a seizure memo of khokhari. He proved the recovery memo (ExtPW-SS/1). In cross examination, he stated that they were not disclosed about the purpose for going there and on being asked by him the Police disclosed the purpose. The police did not talk to the accused on the way to water channel and Six civilians and three police officers were present at that time. None other had come at the place of recovery as long as they remained there. Ext-PW SS/1 was prepared on spot but was not read over to him. The khokhri had no identification mark. Such khokharis were kept by Gorkha regiment. 23. PW-16 Mangat Ram proved the resealing of the packet mark-A. He stated that he resealed the packet and proved the certificate issued by him (ExPW-MR). In cross examination, he admitted that the certificate issued by him did not bear any date. 24. PW-17 Dr. B.R. Sharma stated that he conducted post-mortem of the dead body of the deceased on 28.04.1996 and proved the post-mortem report (ExPW-BR). All the injuries were ante mortem in nature, fresh in duration and caused by some heavy weapon with sharp cutting edge. He also stated that all the injuries collectively were sufficient to cause death in the ordinary course of nature and that injuries 2 and 3 on their own were sufficient to cause death in ordinary course of nature. Further he stated that on 07.07.1996, the Police had produced a khokhri (Ext-1) and he had given his opinion as per the certificate lying in the file. He proved the certificate (Ex PW-BR/1). He proved the certificate whereby he had mentioned that the weapon shown to him is sufficient to cause death as mentioned in the post-mortem. In cross examination, he stated that the khokhri when produced before him did not bear blood stains. He clarified that fresh injuries means the injuries, which might have been caused within three to four hours before the death. He stated that in the instant case also the duration of the injuries was within three to four hours or even within the lesser period of the death. The death in this case might have been caused on 26.04.1996. The post-mortem was conducted by him after about 48 hours of the death. 25. He stated that in the instant case also the duration of the injuries was within three to four hours or even within the lesser period of the death. The death in this case might have been caused on 26.04.1996. The post-mortem was conducted by him after about 48 hours of the death. 25. PW-19 Sanjay Kumar stated that the photographs lying on the file were clicked by him on 28.04.1996. 26. PW-19 Krishan Lal stated that on 28.04.1996 he accompanied ASI Abdul Aziz and constable Suresh Kumar to village Deode Kubbey. They saw number of persons gathered near nallah. They went there and saw the dead body lying in the nallah. They brought out the dead body lying in the nallah. The dead body was having injuries on its neck. ASI then dispatched a docket for registration of FIR to Police Station through him. In cross examination, he stated that the nallah where the dead body was found was having two feet deep water. Since it had rained the last night so there was much water. Before leaving for Police Station with the docket, he had remained on spot for about one and a half hours. 27. PW-20 Suresh Kumar stated that on 28.04.1996 he was on patrol with ASI Mr. Bhatti. They found number of persons at Deode-Kubbe. He also stated about the factum of the dead body lying in the nallah and subsequent recovery and he also deposed that the dead body was bearing injuries having been inflicted with sharp edged weapon on hands and neck. 28. PW-21 Abdul Aziz Bhatti stated that on 28.04.1996 at about 1:00 P.M. he along with police officials were on patrol in Datryal area. They saw a crowd of persons had gathered at a nallah at village Deode-Kubbey and they went there and saw a dead body in water of the nallah. They brought out the dead body and found that the neck was almost severed from the body and there were cut injuries. He wrote a docket to SHO on the spot for registration of the FIR. In cross examination, he stated that he cannot name the person who had identified the dead body. 29. PW-22 Shamser Singh Parihar stated that on 28.04.1996, FIR No. 60/1996 under section 302 RPC was registered on the basis of a docket received through Constable Krishan Lal. He wrote a docket to SHO on the spot for registration of the FIR. In cross examination, he stated that he cannot name the person who had identified the dead body. 29. PW-22 Shamser Singh Parihar stated that on 28.04.1996, FIR No. 60/1996 under section 302 RPC was registered on the basis of a docket received through Constable Krishan Lal. He proved the FIR (Ext-PW-SSP) and stated that he conducted the investigation of the case. During the investigation of the case, he prepared the site plan of the place of occurrence (Ext.-PW SSP/1). He took the custody of the dead body of the deceased vide memo ExPW-PC and also prepared the site plan of place of recovery of the dead body (Ext. PW-SSP/2). He proved the 'fard surathal' (Ext. PW-SSP/3). During post- mortem, he seized the clothes of the dead body vide seizure memo Ext. PW-HS. After post-mortem, dead body was handed over to the father of the deceased (Ext. PW-HS/1). Accused were arrested on 15.05.1996 and on the same day, their personal search was conducted. The search memos Ext. PW-HS/2 of accused Bishan Dass and Ext. PW-HS/3 of accused Ram Dayal were prepared by him. On 23.05.1996 accused Ram Dayal made a disclosure statement that he had concealed a khokhari in bushes at the bank of a nallah at village Deode-Khobbe. He prepared the disclosure memo Ext. PW-SS and subsequently, pursuant to the identification of the accused, khokhri was also recovered vide recovery memo Ext. PW-SS/1. He also prepared the site plan (Ext. PW-SSP/4). He also got identified the khokhri (Ext P-1) in the court. He stated that he proved the docket written to the doctor in respect of khokhri i.e. Ext. PW-SSP/5. He also recorded the statements of the witnesses under section 161 Cr.P.C. After the conclusion of the investigation, he proved the commission of offences under section 302 RPC and 4/27 Arms Act against the accused Ram Dayal and under section 302/34 RPC against accused Bishan Dass. In cross examination, he stated that the occurrence was found to have taken place at about 12 noon on 26.04.1996 whereas the dead body was recovered on 28.04.1996 at about 3 P.M. Kashmir Singh and Suraj Parkash were the eye witnesses of the occurrence. Site plan of place of occurrence was prepared on 10.05.1996 at the instance of the witnesses. In cross examination, he stated that the occurrence was found to have taken place at about 12 noon on 26.04.1996 whereas the dead body was recovered on 28.04.1996 at about 3 P.M. Kashmir Singh and Suraj Parkash were the eye witnesses of the occurrence. Site plan of place of occurrence was prepared on 10.05.1996 at the instance of the witnesses. Accused were arrested on 15.05.1996 and subsequently statement was made by the accused Ram Dayal on 23.05.1996. Recovery was also made on the same day. The accused were questioned prior to 23.05.1996 but disclosure statement was recorded on 23.05.1996. Accused were arrested from village Karloop. None from the village of the accused was kept as witness to the personal search of the accused. Father of the deceased and the witness were taken from village Marh for identification of the accused. As per the investigation, the cause of the enmity was a girl of village Karloop. He did not record the statement of the said girl. APPRECIATION OF EVIDENCE 30. Now we would examine as to whether the prosecution has succeeded in fulfilling the conditions laid down by Apex Court in Sharad Birdhichand v. State of Maharashtra (supra) so as to warrant the conviction of the appellants. CIRCUMSTANCE NO. 1 31. The first circumstance relied upon by the prosecution is the disclosure statement made by appellant Ram Dayal with regard to concealing of weapon of offence i.e. Khokri and its subsequent recovery at the instance of appellant-Ram Dayal. The perusal of the disclosure memo dated 23.05.1996 reveals that PW-11 Subash Chander, PW-12 Swarn Singh and PW-13 Krishan Lal have been cited as marginal witnesses whereas in recovery memo dated 23.05.1996 besides abovementioned witnesses, PW-14 Hardutt Singh and PW-15 Matwal Singh have also been cited as witnesses. PW-11 Subash Chander is of no help to prosecution because he identified appellant Bishan Dass as a person who made disclosure statement whereas the prosecution case is that the appellant Ram Dayal made disclosure statement. He also stated that he and the witnesses did not go to the place of recovery as none had asked them to go there and they kept standing at a distance of 15-20 ft. PW-12 Swarn Singh stated that he was sitting in the room of SHO as he had gone there in connection with timber of his sawmill. He also stated that he and the witnesses did not go to the place of recovery as none had asked them to go there and they kept standing at a distance of 15-20 ft. PW-12 Swarn Singh stated that he was sitting in the room of SHO as he had gone there in connection with timber of his sawmill. SHO called the accused Ram Dayal to narrate what he had earlier stated about the occurrence and then he narrated the manner in which he killed deceased. The statement of PW-12 Swarn Singh shows that the SHO was aware about disclosure of appellant Ram Dayal even prior to the disclosure statement made by the appellant Ram Dayal and in light of his statement it cannot be said that the appellant for the first time made disclosure statement before SHO in presence of witnesses. PW-22 Shamsher Singh, Investigating Officer has stated that accused was arrested on 15.05.1996 and appellant Ram Dayal made disclosure statement on 23.05.1996 with regard to concealing of kokhari in the bushes and subsequently same was recovered. In cross examination, he admitted that the accused was questioned prior to 23.05.1996 but disclosure statement was made on 23.05.1996. If the statement of PW-12 Swarn Singh is read with statement of I.O. PW Shamsher Singh, it becomes evident that SHO had earlier questioned the appellant Ram Dayal and was aware about the occurrence as well as concealment of weapon of offence, therefore it cannot be said with certainty that the appellant for the first time made disclosure statement on 23.05.1996 in presence of witnesses. In view of the above, it would not be safe to place reliance upon the disclosure statement as the same is doubtful more particularly when the appellant was arrested on 15.05.1996 and alleged disclosure statement was made on 23.05.1996 i.e. after the eight days of arrest. It is mentionable here that the third witness to the disclosure memo i.e. PW-13 Krishan Lal was given up by the prosecution. PW-14 Hardutt Singh stated that Ram Dayal accused took them across the fields to a water course. Bushes had grown there and he brought out a parthi from there. The parthi was blood stained. He admitted that kokhri, dah, and parthi are different kinds of weapons. He then clarified that weapon recovered was khokri and not parthi. He again stated that they consider khokhri and parthi as one. Bushes had grown there and he brought out a parthi from there. The parthi was blood stained. He admitted that kokhri, dah, and parthi are different kinds of weapons. He then clarified that weapon recovered was khokri and not parthi. He again stated that they consider khokhri and parthi as one. The said weapon is called parthi and khokhri. Such khokhris are generally kept by the farmers. PW-15 Matwal Singh also deposed about recovery of khokhri and stated that such khokhris are not found in his village but such khokhris are kept by gorkha regiment. PW-14 Hardutt Singh is making different statements with regard to the weapon and very intelligently he has tried to justify his contradictory statements and as such he is not trustworthy and cannot be relied upon. In view of above, it is evident that the prosecution has not been able to prove the disclosure statement of the appellant and consequent recovery beyond reasonable doubt because if the prosecution has to rely upon the said statement made by the accused in Police custody leading to discovery of fact to prove the complicity of accused in commission of offence, then there should be no doubt about the disclosure statement and recovery. The delay in the disclosure statement coupled with trustworthiness of the attesting witnesses etc, are the relevant considerations for evaluating the disclosure statements and consequent recovery. In Bijender v. State of Haryana, (2022) 1 SCC 92 the Apex Court has held as under: “16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. 1 We may hasten to add that circumstances such as (i) the period of interval between the malfeasance and the disclosure; (ii) commonality of the recovered object and its availability in the market; (iii) nature of the object and its relevance to the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. [See: Tulsiram Kanu v. The State; Pancho v. State of Haryana; State of Rajasthan v. Talevar & Anr. and Bharama Parasram Kudhachkar v. State of Karnataka] 17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that “it is better that ten guilty persons escape, than that one innocent suffer”. The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that “the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent.” 32. Thus, we are of the opinion that the prosecution has not been able to prove the abovementioned circumstance against the appellants. CIRCUMSTANCE NO. 2 33. The second circumstance is against the Appellant No. 2 i.e. Bishan Dass and it is that one broken gold chain and locket having inscription “LS” was found from the personal search of the Appellant No. 2, that belonged to the deceased Lochan Singh. A perusal of the memo of personal search i.e. Ext. PW HS-2 reveals that the personal search of the Appellant No. 2 was conducted and from the pocket of kurta of Appellant No. 2, one broken gold chain and locket having inscription of LS was recovered along with Rs. 55/-. 34. PW-5 Harbhajan Singh is the father of the deceased and perusal of his statement reveals that the Police had recovered one gold broken chain and Rs. 55 upon the search of appellant-Bishan Dass. The locket belonged to his Lochan Singh and letters LS were inscribed on it. He has also stated that on 15.05.1996 at about 5 P.M., Police told them that they had got a clue so that they should accompany them for apprehending the accused. They had accompanied the Police to a distance of 15-16 kms to village Karloop. The accused/appellants were arrested from a cattle shed located at inhabitated place where they were hiding. Police party comprised of SHO, A.S.I Bhatti and 7-8 constables. ASI Abdul Azeez effected the personal search of the accused persons. Before effecting search of the accused persons, ASI had got himself searched by them. The accused/appellants were arrested from a cattle shed located at inhabitated place where they were hiding. Police party comprised of SHO, A.S.I Bhatti and 7-8 constables. ASI Abdul Azeez effected the personal search of the accused persons. Before effecting search of the accused persons, ASI had got himself searched by them. ASI prepared all the documents on spot after arrest of all accused persons and obtained their signatures. PW-6 Harbhajan Singh is another witness to the memo of search and recovery of locket. He has stated that on 15.05.1996 they had gone to the Police Station and Police took them to village Karloop saying that they had got a clue so that they should accompany them. There was a kula in the jungle where police arrested two persons. The police effected the personal search of the accused persons, locket of the deceased was identified by the father of the deceased and besides that, Rs. 50/55 were also recovered from the search of the accused-Bishan Dass. In cross- examination, he stated that he had not seen the locket worn by anyone and as the father of the deceased identified the locket, so he identified. The locket was not having identification. If the statement of PW-5 is to be believed then the locket was having inscription of 'LS' whereas PW-6 is concerned, in his cross examination, he has stated that locket was not having any identification. More so, PW-6 has stated that the personal search of the appellant Bishan Das was conducted by ASI Bhatti whereas ASI Bhatti-PW 21 has deposed nothing about the recovery. PW-5 is the father of the deceased and PW-6 is brother-in-law of PW-5. Therefore, their statements are required to be appreciated with due care and caution. The contradiction between the statements of PW-5 and PW-6 with regard to the inscription existing on the locket is irreconcilable and as such, cannot be ignored. 35. It would be advantageous to take note of observations made by Apex Court in Bhaskarrao v. State of Maharashtra, 2018 (6) SCC 591 the relevant portion is reproduced as under: “36. The contradiction between the statements of PW-5 and PW-6 with regard to the inscription existing on the locket is irreconcilable and as such, cannot be ignored. 35. It would be advantageous to take note of observations made by Apex Court in Bhaskarrao v. State of Maharashtra, 2018 (6) SCC 591 the relevant portion is reproduced as under: “36. From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness before the court of law, having a strong interest in result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule which remains the bulwark of this system, and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner, when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case.” 36. The same principle has been reiterated by Apex Court in Md Jabbar Ali & Ors. v. State of Assam, wherein it has been held as under: “48. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court in a number of cases has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera & Ors. v. State of Orissa, (2002) 8 SCC 381 , this Court held that the testimony of such related witnesses should be analysed with caution for its credibility.” 37. Otherwise, mere recovery of the locket from the possession of the Appellant No. 2 without attributing any act to the appellant No. 2 would not establish that the Appellant No. 2 had participated in the committing the offence of murder. CIRCUMSTANCE NO. 3 38. The third circumstance relied upon by the prosecution that the injuries found on the dead body of the deceased could have been inflicted by the weapon of offence i.e. khokhri. Though we have already come to the conclusion that the prosecution has not able to prove the disclosure statement beyond reasonable doubt but still we proceed to examine as to whether the weapon of offence i.e. khokhri was used in the commission of offence or not. There is no eyewitness version of the occurrence before us but as per the recovery memo, the khokhri at the time of recovery was blood stained and to same extent PW 14 Hardutt Singh and PW 15 Matwal Singh have deposed about the khokhri having blood stains. The said khokhri after its recovery, was got sealed on spot on 23.05.1996. The said khokhri was got resealed by the Executive Magistrate 1st Class, Jammu but it is not forthcoming as to when the said khokhri was resealed by the Executive Magistrate as PW 16 Mangat Ram has admitted that there is no date on the certificate of resealing issued by him. The said khokhri was got resealed by the Executive Magistrate 1st Class, Jammu but it is not forthcoming as to when the said khokhri was resealed by the Executive Magistrate as PW 16 Mangat Ram has admitted that there is no date on the certificate of resealing issued by him. The said khokhri was received by the FSL on 08.06.1996 for chemical examination. The Scientific Officer, FSL Sh. K.K. Raina has recorded that the khokhri appears to be apparently washed and origin of the blood could not be determined due to insufficiency of blood. Though Sh. K.K. Raina, Scientific Officer, FSL Jammu has not been examined but the prosecution has placed on record the said FSL report. Who washed the khokhri remains a mystery. Though Dr. B.R. Sharma PW-17 has stated that the weapon is sufficient to inflict injuries mentioned in the post-mortem report dated 08.04.1996 but in absence of any report about the origin of blood upon the khokhri, it cannot be conclusively determined that the said weapon of offence was used for committing the murder of the deceased. Had there been any eyewitness version of the occurrence with regard to the use of weapon of offence, we would have ignored the said discrepancy but in view of the fact that the whole case is based upon the circumstantial evidence, the said gap in the prosecution evidence cannot be ignored and benefit thereof goes to the appellants. CIRCUMSTANCE NO. 4 39. The fourth and last circumstance relied upon by the prosecution is that the appellant Ram Dayal had been nurturing enmity with the deceased because of his relation with the girl and in fact he threatened the deceased in presence of PW-8 Sher Bahadur Singh. Though the motive is irrelevant when the prosecution case is based on direct evidence but when the whole case is based on circumstantial evidence and more particularly when the motive for commission of offence has been projected by the prosecution, then certainly the failure on the part of the prosecution to prove the motive leaves a gap in the chain of circumstances tilting the balance in favour of the accused. In S. Kaleeswaran v. State, 2022 Legal Eagle (SC) 1265 the Apex Court has held as under: “The Court also finds substance in the submission made by the learned counsel for the appellants that the prosecution had also failed to prove the motive of the accused for committing the alleged crime. As held in Nandu Singh v. State of M.P. though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. In the instant case, the PW-8 Mr. Rajendran to whom the Ambassador car of the deceased was allegedly sold by the accused, had turned hostile and not supported the case of the prosecution that the money was received by the accused by selling the car to the PW-8.” 40. In fact, the motive projected by the prosecution for committing the murder of deceased Lochan Singh by the appellant-Ram Dayal is that he was having relations with a girl namely X. The only witness that has been produced by the prosecution to prove the said circumstance is PW-8 Sher Bahadur Singh. Pw-8 Sher Bahadur Singh, of course is a related witness being uncle of the deceased Lochan Singh and his evidence is required to be appreciated with due care and caution. He has stated that on 21.04.1996 he had gone to meet his relative at Gol Gujral and thereafter, he was going to meet his parents at Marh Bagh. While he was standing at Tillo Bouri Chowk, his nephew Lochan Singh was going towards city on a scooter with a girl as pillion rider. He was embarrassed on seeing him. On enquiry, he disclosed that the girl resided in front of the academy. In the meantime, accused Ram Dayal and accused Papa came there on motorcycle and asked him that you should advise your nephew otherwise consequence would not be good. On that, he warned Lochan Singh. He then got the girl boarded in a bus going to city. He along with Lochan Singh returned. He admitted that from 20.04.1996 to 28.04.1996, he did not narrate that incident to anyone except his brother on the date when the dead body of the deceased was recovered. On that, he warned Lochan Singh. He then got the girl boarded in a bus going to city. He along with Lochan Singh returned. He admitted that from 20.04.1996 to 28.04.1996, he did not narrate that incident to anyone except his brother on the date when the dead body of the deceased was recovered. PW-5 Harbhajan Singh, the father of the deceased stated that PW-8 disclosed him about the incident of meeting Lochan Singh and threatening by appellant Ram Dayal on 27.04.1996 and as such he contradicts PW-8 Sher Bahadur. PW-22 Shamsher Singh Parihar Investigating Officer has admitted that he did not record the statement of the said girl. She was the most important witness to prove the motive for the commission of murder of the deceased. Her non association with the investigation has caused dent in the prosecution case so far as proof of motive is concerned. PW-5 and PW-8 are the father and paternal uncle of the deceased and their contradictory testimonies cannot be relied upon in absence of independent corroboration. 41. We have examined the judgment passed by the learned trial court and the learned trial court has placed much reliance upon the disclosure statement as well as recovery of the weapon of offence, which in our opinion, the prosecution has miserably failed to prove. More so, the learned trial court has relied upon the statement of PW-8 Sher Bahadur Singh so far as motive is concerned but in absence of the statement of a girl with whom the appellant Ram Dayal and deceased Lochan Singh were having affair, it cannot be said that the prosecution has proved the motive. We are of the considered view that the learned trial court has not appreciated the evidence in its right perspective and has even not gone through the whole statement of PW-6 Harbhajan Singh as there is no mention in the judgment of the trial court with regard to his deposition that the locket was not having any identification. The appellants were required to be acquitted as the prosecution had not succeeded in its case beyond reasonable doubt. 42. In view of what has been said and discussed above, the judgment of conviction dated 22.03.2008 along with order of sentence dated 24.03.2008 passed by the learned Principal Sessions Judge, Jammu in challan titled State v. Ram Dayal & Anr. arising out of FIR NO. 42. In view of what has been said and discussed above, the judgment of conviction dated 22.03.2008 along with order of sentence dated 24.03.2008 passed by the learned Principal Sessions Judge, Jammu in challan titled State v. Ram Dayal & Anr. arising out of FIR NO. 60/1996 under sections 302/34 RPC and 4/27 Arms Act of Police Station, Domana is set aside. The appellants are acquitted of the charges and the charge sheet is dismissed. Appellants are on bail, their bail and personal bonds are discharged. 43. Reference is answered accordingly. 44. Record of the trial court be sent back forthwith.