Himachal Pradesh High Court
Chuni Lal And Two Ors. vs State Of H.P. on 31 March, 1994
Equivalent citations: 1995CRILJ1393
JUDGMENT D.P. Sood, J.
1. Appellants, Chuni Lal, Partap Singh alias Partapu and Kabli Ram were jointly tried and convicted for the commission of the offence under Sections 302, 394 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 2,000/- on each count, i.e. under Sections 302 and 394 IPC respectively. Each one of the appellant, in case of default of payment of fine, was directed to undergo rigorous imprisonment for six months on each count vide the impugned judgment dated" January 16, 1993 passed by the learned Sessions Judge, Chamba (H.P.). However, the sentences passed on each count were to run concurrently. Aggrieved with the aforesaid judgment of the trial Court, all the accused have filed the instant appeal seeking reversal thereof.
2. Precisely, the prosecution case is that appellant hail from village Paryungal, Police Station, Kihar, District Chamba. They have been apprehended for the murder of Shri Khurshid Ahmad which incident is alleged to have been witnessed by Mohammad Ayub (PW-1). The deceased was a close relation of PW-1, being son of latter's maternal uncle. At the material time, PW-1 Mohammad Ayub was working with the deceased as his servant. Both of them came to the area of Bhandal for purchase of sheep and goat in July, 1991. A day preceding the incident, both of them had gone to village Paryungal and met S/Sh. Kabli and Partapu accused. As per the prosecution story, a deal was struck in between them regarding the purchase of sheep and goats. Thereafter, both came back to village Sanghni where again they met the complainant party and asked them to come on the next morning in relation to the aforesaid transaction. On the following day, both the deceased and PW-1 Mohammad Ayub proceeded towards Paryungal early in the morning at about 5 a.m. However, when they reached near a `nala', accused Kabli gave a whistle and asked them to corne up. Thereupon, both went up and met the two accused who stated that their "Maal" had gone to Adhwar. All of them then proceeded to second 'nala' where the third accused Chuni Lal, holding a 'Kulhari' in his hand, met them. At the behest of the accused, all of them sat and started taking rest. Partapu accused offered "Bidi" to all and they started enjoying smoking.
3. As per the prosecution, at this stage, Chuni Lal accused assaulted Khurshid Ahmad (deceased) by giving a 'Kulhari' blow on his head whereas other two accused held the deceased and pushed him towards the 'nala'. Kabli accused is then stated to have attacked Mohammad Ayub (PW -1) with 'Kulhari' but he caught 'Kulhari' from his hands, gave tooth bite to him and 'Kulhari' fell down. PW-1 then ran away towards village Sanghni in order to save his life. The accused persons then assaulted him by throwing stones consequent whereto PW-1 sustained injuries on his left leg and head.
4. On the way, Shaukat Ali (not produced) and Mohammad Salim (PW-2) met him. He narrated the entire incident to both of them and then they proceeded to Sanghni village where Shri Sagar Chand, Station House Officer/Sub-Inspector (PW-23) met them. PW-1 lodged the report and his statement Ex. PA under Section 154 of the Code of Criminal Procedure was recorded. PW-23 sent ruqua Ex. PA through Constable Tilak Raj to Police Station, Kihar for the formal registration of the case, on which basis FIR Ex. PX was recorded by MHC Jitender Kumar (PW-15). The FIR further discloses that PW-1 accompanied the police to the spot where Khurshid Ahmad was found alive in an unconscious state of mind, lying in the 'nala' in a serious condition and he was brought to the road. PW-3 investigated the case. During investigation, he got PW-1 Mohammad Ayub medically examined by Dr. Satish Sharma (PW-11) who found the injured having sustained injuries on his person as recorded in the Medico Legal Certificate Ex. PW-11/A. PW-23 also sent injured Khurshid Ahmad to Primary Health Centre, Kihar through ASI Karam Chand for medical aid. However, on examination, concerned doctor declared that Khurshid Ahmad was dead. Inquest report Ex. PG was prepared on the following day, as earlier it could not be prepared during the night time since the lights went off. Autopsy was conducted on the body of Khurshid Ahmad by Dr. Pardeep Sharma (PW-22) at District Hospital, Chamba and he gave his post mortem report Ex. PW. He also preserved viscra and handed over the same under sealed cover to the police. According to his report, the injuries sustained by the deceased were ante-mortem in nature and probable time in the death and the post-mortem was more than 48 hours. He also stated that injuries were possible with 'Kulhari' (Ex. P-22). He also collected material evidence in the shape, of diary, identity card, bag (Exs. P-1 to P-3) and also blood stained stones P-8 and P-9 lying on the spot, besides bloodstained earth, brain matter found lying near the body of Khurshid Ahmad. He also recorded statements of various witnesses. Arrests of all the accused on different dates were effected. They were interrogated, consequent whereof, each one of them made disclosure statement and recovery of incriminating articles pursuant to the disclosure statement of each one of them was got effected at the behest of the accused. The said disclosure statements and recovery memos are stated to have been prepared in accordance with the statutory provisions after observing the codal formalities. After completion of investigation, the accused were prosecuted for the commission of the above said offences.
5. On consideration of the material collected by the investigating agency, charge for the commission of the above said offences was framed against each one of the accused persons, who abjured the guilt and pleaded false implication.
6. On appraisal of the evidence, the trial Court convicted and sentenced each one of the accused persons for the commission of the offences as indicated above.
7. We have heard Shri M.S. Chandel, learned counsel appearing on behalf of the appellants as also Shri C. L. Sharma, Addl. Advocate General, at length. They have also taken us through the entire record which has closely been examined by us.
8. This case primarily hinges on the testimony of a single eye-witness Mohammad Yakub (PW-1). Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye witness is wholly reliable witness, the Courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony in material particulars, before recording conviction. It is only when the Courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in to and no amount of corroboration can cure that defect.
9. It appears from the testimony of PW-1 that he and the deceased both met all the accused persons in the early hours of the morning (5 a.m.) on the following day, as agreed to, and that they were assaulted by them in the manner detailed above, impliedly the motive being for looting the booty of near about Rs. 70,000/- which was with the deceased. The learned Sessions Judge has accepted the prosecution case that PW 1 and the deceased were assaulted in the 'Nala' in which deceased suffered fatal injuries and PW-1 also sustained injuries on his person and in addition, that in the course of that incident, cash of Rs. 50,000/- to Rs. 60,000/- approximately was taken away by the assailants. In the instant appeal, learned counsel for the appellant, has not challenged this finding of the Court below. We are also satisfied that an occurrence, undoubtedly, took place near about the `nala' located about 4 kms. behind from village Sanghani. The only question that falls for consideration is whether or not the appellants participated in the crime. PW-1 is the eye witness. As per Court below, his statement finds corroboration from the testimony of PWs 2, 20 and 23 as also the conduct of the accused themselves in having made disclosure statement and respective recoveries of the in-criminating articles having been effected at. the behest of each one of them. After going through their evidence, we do find that there is some amount of consistency in their evidence, but mere congruity or consistency are not the sole tests of truth. Sometimes even falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case, so far as the participation of the appellants is concerned.
10. In the first place, the investigation does not appear to be honest. The First Information Report Ex. PA appears to be the outcome of a coloured version as a result of deliberations and consultations, as is apparent from the circumstances, now being discussed. Both the deceased and Mohammad Ayub (PW-1) are closely related to each other. Both hailed from village Bhalesa Bisran located in the State of Jammu & Kashmir. Rather, PW-1, at the material time, was employed as a servant with the deceased who being a trader, used to deal in the purchase and sale of sheep and goats. PW-1 had come to village Paryungal for the first time and was a stranger not only to the place but also to the residents of that area. Apart from it, both PW 1 and the deceased had met only S/Sh. Kabli and Partapu accused about 10 hours prior to the incident. No time was fixed for the second meeting, as according to testimony of PW-1, both these accused had asked the deceased and PW-1 to come in the morning on the following day in connection with the purchase of sheep and goals. As per PW-1, Chuni Lal had met at the lime of occurrence and he knew the name of this accused, as he was named by his co-accused. After assault, he ran towards village Sanghani, met Mohammad Salim (PW-2) and Shaukat AH in between 6.00 a.m. and 6.45 a.m. narrated the incident to them. Thereafter, The Station House Officer met them in village Sanghani to whom he also narrated the entire incident. PW-2 does not state that the names of assailants were told to him by PW-1 nor it find mention in Rapat Rojnamcha Wakyati (Ex. DA), which has been recorded at 8.15 a.m. Shri Sagar Chand, SHO, PW-23, admits having received the message relating to this occurrence at 7 or 7.30 a.m. at Police Station, Kihar. In other words, according to PW-23, police of Police Station, Kihar was seized of the matter under consideration at 7.30 a.m. If that be so, why Ex. DA was recorded at 8.15 a.m. i.e. after 45 minutes of the receipt of information? This report shows that MHC Budhi Singh No. 289 of Police Post, Sanghani had conveyed the message through WHF set regarding the incident stating that the people of Paryungal had picked up a quarrel with the butchers of village Bhalesa Bisran of Jammu & Kashmir State near village Paryungal in which butchers sustained injuries. Ex. DA is silent as to how the police got information of the occurrence and why the police of Police Post, Sanghani did not proceed to the place of occurrence immediately for inquiry into the matter and why the names of the accused persons were not recorded in the report aforesaid which was transmitted to Police Station, Kihar. The record further shows that statement of PW-1 Ex. DA has been recorded at 10.30 a.m. In case the message as recorded in Ex. DA is believed to have been received by PW-23, he should have directly proceeded to the place of occurrence instead of visiting village Sanghani and then recording the statement of PW-1 Mohammad Salim because nothing was known to the said witness at that time. On the contrary, PW-1 categorically states that SHO had met him while he was accompanied by Mohammad Salim PW-2 and Shaukat Ali at 7.30 a.m. in village Sanghani and he narrated the entire incident. Statements of PWs 1 and 23 are in contradiction to each other and coupled with other facts and circumstances, emerging from the record, it appears that before recording the statement Ex. PA Under Section 154 Cr. P.C. of Mohammad Ayub (PW-1) the police headed by Sagar Chand (PW-23) visited the spot and apprised himself of the entire facts. This circumstance is corroborated by other factors that the names of the accused persons have specifically been recorded in Ex. PA, seemingly at the behest of PW-1, but PW-2 does not state the names of the assailant nor indicates that their names were told to him when PW-1 met him. No explanation has been given by either of the PWs for reconciling this major contradiction. Another fact, which corroborates our conclusion that the FIR is the outcome of a coloured version, is that PW-1 in Ex. PA states that 4/5 `Kulhari' blows were inflicted upon the person of deceased, where as in his testimony, PW-1 states that only one 'Kulhari' blow was given to the deceased. When confronted with the earlier statement, he denies the same to have stated so. Another fact which also cements our conclusion is, when PWs 1, 2 and 23 visited the spot at about 11 a.m. as per their statement on oath before the trial Court, they found Khurshid Ahmad (now deceased) alive in an unconscious state of mind with serious injuries on his person along with incriminating articles lying near by him, whereas the post mortem report shows death instantaneously, i.e. within minutes. Normally, the police after having been seized of the matter, would not have allowed the seriously injured person to remain in the `nala' in an injured condition for about 4 to 5 hours without making an attempt to get him medical aid. All these circumstances, taken together, apparently show dishonest investigation resulting into recording of delayed report of the occurrence.
11. Secondly, there are contradictions and major discrepancies on material particulars in the testimony of PW-1 Mohammad Ayub, who witnessed the occurrence. There is no doubt that he had accompanied the deceased to the place of occurrence and in the assault he also received injuries on his person. Thus, he is not only a natural witness, but also a stamped witness. Ordinarily, such a witness would be the last person to spare the assailant and implicate a false person. However, since there are some doubtful aspects in his conduct, it would not be safe to accept his testimony without independent corroboration, direct or circumstantial. As per his testimony as. PW-1, deceased was the son of his maternal uncle. Both are closely related to each other. In his earlier statement Ex. PA, he has given the names and addresses of the assailants without explaining as to how he came to know of their whereabouts. He has also stated in Ex. PA that on the previous night of the occurrence, he along with the deceased and two other contractors S/Sh. Farookh and Yusuf resided at the house of one lady but while appearing as PW-1, he states to have resided at the house of Mohammad Salim (PW-2) at village Jalari. When confronted with the earlier statement, he denied to have made the same. Similarly, there is a glaring contradiction in his earlier statement Ex. PA with respect to the number of injuries inflicted with `Kulhari' as compared to his statement as PW-1. In Ex. PA, the number of injuries inflicted with `Kulhari' have been given to be 4-5 where as in his statement he states that only one injury with `Kulhari' was inflicted. When confronted, he has denied his earlier statement. His testimony does not tally with the number of injuries recorded in the post mortem report, which reconciles with the number of injuries given in Ex. PA. Apart from the above, in his earlier statement Ex. PA, the accused did not state that he had any physical contact with Kabli accused or that he had given tooth bite on his (Kabli) person. However, subsequently, he has so stated in his supplementary statement recorded by the police under Section 161 Cr. PC and ultimately before the Court as PW-1. Supplementary statement has been recorded twice subsequent to Ex. PA or 14-7-1991 and 15-7-1991 respectively as is apparent from the case diary. However, despite the fact that the accused had been named and facturn of PW-1 having given tooth bite to Kabli accused was brought to the notice of the police, the said accused was arrested on the 5th day of occurrence i.e. 18-7-1991 and even thereafter the description of his particulars and identification marks lacks this fact of tooth bite injury on the person of this accused which shows subsequent improvements. Ail these circumstances, taken together, show that PW-1 has made an attempt to link accused Kabli with the commission of offence by showing his presence at the spot. This is a material improvement on his part.
12. The third circumstance is that there is no independent corroboration to the testimony of Mohammad Ayub (PW-1), an occular witness, either by way of direct or circumstantial evidence. PW-2 Mohammad Salim and Shaukat AH (not produced) were the first persons to whom PW-! Mohammad Ayub narrated the incident immediately after the assault. However, PW-2 does not name the accused nor the fact that their names were disclosed by PW-1 nor he states about the factum of tooth bite having been given by PW-1 to Kabli accused, having been disclosed to him when the incident was narrated to him.
13. The other witness is Sagar Chand (PW-23). He states to have received the information through WHF from M.H. Budhi Singh of Police Post, Sanghani regarding the quarrel in between the residents of Paryungal and butchers of village Bhalesa Bisran of Jammu & Kashmir State, which report was recorded as Ex. DA at 8.15 a.m. though, in his cross-examination, he admits to have received the information at 7 of 7.30 a.m. PW-1 also states to have met SHO at village Sanghani at or about this time, namely, 7 or 7.30 a.m. Also, the place of occurrence is nearer to village Paryungal and the place of occurrence falls in between Police Station, Kihar and village Sanghani. PW-23, Sagar Chand Investigating Officer states that he proceeded to village Sanghani on receiving information. Why Ex. DA, Rapat Rojnamcha Wakyati had been recorded 45 minutes late than the receipt of information and why he did not proceed to the spot direct and instead went to village Sanghani, remain unexplained. Also, what actual information he had received at 7 or 7.30 a.m. and from whom, has also not been clearly stated by him. In addition thereto, as per ASI Karam Chand (PW-20) the injured was alive though in a serious condition and he was unable to speak and was removed to PHC, Kihar with a view to extend him medical aid where he reached at 10 p.m., i.e. after about 16 hours of the, occurrence at the behest of PW-23. However, on examination, the injured was declared `dead' by the medical expert. Why PW-23 did not take precautions to see that the medical aid is extended to the seriously injured Khurshid Ahmad, also speaks volumes against the prosecution. The PHC is only at a distance of 12/13 kms. from the place of occurrence and PW-23 had come in a vehicle to village Sanghani which is at a distance of 4/5 kms. from the spot. His statement that he received information at 7 or 7.30 a.m. at P.S. Kihar, appears to be incorrect. It is in contradiction to the statement of Mohammad Ayub (PW-1) who says that SHO met him at village Sanghani and he narrated the entire incident. The conduct of investigation by PW-23 is of doubtful nature and, thus, this witness can also not be relied upon nor any corroboration can be sought to the statement of PW-1.
14. The other circumstance consists of recoveries which can be said to corroborate the version given by PW-1. In case recoveries are ignored, then there exists no direct or circumstantial evidence to Sink the accused with the commission of the offence. The weapon of offence, with which the deceased was assaulted, is `Kulhari' Ex. P-22. According to Dr. Pardeep Sharma (PW-22), who conducted autopsy on the person of the deceased, are possible with the weapon of offence in question. Its recovery is attributed to be at the instance of Chuni Lal, one of the accused. As per PW-23, Sagar Chand, Investigating Officer, he was arrested on 16-7-1991 whereas according to PW-1 he remained with the police since 14-7-1991, i.e. the date on which occurrence had taken place. Police interrogated him on 19-7-1991 and recorded his disclosure statement (Ex. PT) in the presence of S/Sh. Des Raj (not produced) and Mohammad Ali (PW-8) on the same day. In addition thereto, Rs. 9,000/- were also got recovered from him. Shri Sagar Chand, Investigating Officer, has stated that Chuni Lal made a disclosure statement in the presence of aforesaid witnesses that one Kulhari and the money which had fallen in his share i.e. Rs. 9,000/- has been kept by him in his own Adhwar under the bushes and the said statement was reduced into writing as Ex. PT which was signed by the accused and the witnesses. The trial Court had simply recorded that PW-8 Mohammad Ali has also corroborated the aforesaid version of PW-23. However, cross-examination of PW-8 discloses a different version wherein he admitted that Chuni Lai accused told that he had kept Kulhari and currency notes at different places. Further, the accused had stated that when he was running from the place of occurrence, he had thrown the 'Kulhari' in the nala and can point out the place. The statement of marginal witness to disclosure statement Ex. PT demolishes the contents of the disclosure statement. The other marginal witness has not been produced. Which are those two places as referred to by him in Ex. PT or from where the incriminating articles, namely, Kulhari and Rs. 9,000/- (the share of booty of this accused) were recovered, have not been stated by him. Even otherwise, Kulhari is of common pattern and it is not stained with blood. Also, the deceased was found to have the following injuries on his person:
(1) Deep incised wound on left partial region, measuring spinal shaped with 8 cm x 3 cm up to the brain matter. (2) Deep incised wound in left partial region measuring spindal shaped 7 cm x 2 cm, brain matter deep. (3) Superficial incised wound in left ear measuring 2 cm x 5 cm deep.
(4) Superficial incised wound in temple region measuring 3 cm x 5 cm x 2.5 cm deep.
It is the case of the prosecution that 4 or 5 injuries were inflicted with `Kulhari' Ex. P-22. Also, as per Dr. Pardeep Sharma PW-22, the body of the deceased as also his wearing apparels were stained with blood, mud and grass particles. In case, Kulhari Ex. P-22 had been used in the incident, then in view of injuries, particularly 1 and 2, it would have been profusely stained with blood. Now coming to the recovery of Rupees 9,000/- from this accused. Admittedly, it was a rainy season. The notes had been recovered after 5 days. These have been recovered from a place located in Adhwar forest. The condition of the currency notes is good. Normally, in the rainy season, the currency notes cannot remain in the same condition. These facts have not been considered by the learned Sessions Judge. All these facts, taken together, firstly show that disclosure statement has not been proved and secondly, no recovery in accordance with Section 27 of the Indian Evidence Act is proved to have been effected. Thus, the recoveries allegedly effected by Chuni Lal accused are to be ignored.
15. Now coming to the recoveries effected from Kabli accused. Kabli accused was arrested on July 18, 1991 and on interrogation his disclosure statement (Ex. PN) was recorded on 21-7-1991, consequently whereof watch and handkerchief were recovered at his behest in the presence of Subhan (PW-6) and Sunil Kumar (not produced). So far as the watch (Ex. P-13) is concerned, prosecution has stated that it was worn by Khurshid Ahmad deceased. As per the disclosure statement Ex. PN, the watch was stated to have been concealed at a place in Garhmata and accused had stated that he could get it recovered. Garhmata, as per the site plan, is at a far off distance from the place of occurrence and falls ahead of boundary of the State of H. P. within that of Jammnu and Kashmir. Why the accused should have concealed this watch at such a far off distance (more than 18 kms. from the place of occurrence)? This fact remains mysterious. Even otherwise, in the first instance, it is to be noted that it is not proved to be owned by the deceased. PWs. 1,6,12 and 13 as also DW-5 are the relevant witnesses in respect of it. PW-1 is Mohammad Ayub, who does not say that the deceased was wearing the watch on the date of occurrence. PW 13 Taslim AH is the brother of the deceased. He only states that watch (P-13) belongs to his brother. No cash memo has been produced or proved. Even identification of this article conducted by Tehsildar (PW-14) is of no help to the prosecution. Both have admitted that at the time of identification parade, similar watches were not mixed up. They have stated that watches of different dials and different straps were mixed up and then identification parade was conducted by PW-14. PWs. 6,12 and DW-5 have also not stated that the watch was owned by Khurshid Ahmad. As regards handkerchief, it neither bears stains of blood nor it has been proved to be that of the deceased. Rather, the accused in his statement under Section 313 Cr. PC has stated that he remained with the police during the investigation from its very inception. Apart from this fact, in case the duration of detention is seen, then it appears that it is abnormal. All these circumstances show that the disclosure statement is not of voluntary nature. Apart from it, as power disclosure statement, an amount of Rs. 9,000/-has also been recovered from this accused in the presence of Mohammad Ali (PW-8). In his cross-examination, he has admitted that Kabli Ram accused was brought in the room of SHO by a constable. Kabli Ram produced Rs. 9,002/- from his pocket to the police when inquiry was made by the SHO with respect to the money; PW-8 is marginal witness to the disclosure statement of Chuni Lal, though he was also associated on 18th July, 1991 when Kabli accused was arrested. He is also marginal witness to the recovery memo of Rs. 9,0027- from Kabli accused. This memo slates that accused at the time of arrest suo motu produced this amount. How could it be believed? He has been arrested at his native village whereas the production of the amount is in Police Station. At the time of his arrest, personal search must have been effected and this amount could have been recovered and consequently fact mentioned in that personal search memo. However, this is not so. On the other hand, accused Kabli and his mother appearing as DW has specifically stated that they had handed over this amount to the Investigating Officer at his askance, who forced him to hand over the amount. In fact, PW-4 in his testimony has stated that the SHO had apprised him that the money had already been recovered from this accused and that he was to be a witness only to the said fact. It is pertinent to state that none of the relation witnesses of the deceased have come forward to show as to whether deceased Khurshid Ahmad was or was not possessed of money to the extent of Rs. 70,000/-. The prosecution appears to have deliberately suppressed the best available evidence for reasons, best known to it.
16. Now, I advert to the recovery of Rupees 9,000/- made from Partapu accused. His disclosure statement was recorded on 20-7-1991. Currency notes of Rs. 9,000/- are stated to have been recovered from Libra Jungle, pursuant to his disclosure statement Ex. PH in the presence of Inayat Mohammad and Panchhi, who appeared in defence on behalf of the accused. The police party stated to have recovered amount from a "Kud" placed in a polythene envelop at the behest of the accused. However, Panchhi DW-1 and Smt. Kali, mother of accused Partapu, state that the Investigating Officer had collected Rs. 9,000/- from the mother of the accused and thereafter disclosure statement Ex. PH of this accused was recorded by the Investigating Officer. The conduct of the Investigating Officer depicted by various circumstances discussed above, has made his testimony incredible and unnatural. No interestedness. or cordial relations of Panchhi DW with the accused, I have been shown by the prosecution. In the absence of any cogent and convincing evidence as to the currency notes belonging to and possessed by she deceased at the material time, which currency is of general nature, we are unable to believe this story.
17. The manner in which the disclosure statements of all the accused have been recorded and recoveries allegedly effected at the behest of each one of then, is bereft of truthfulness, authenticity and credibility because of the deliberate and dishonest investigation on the part of the Investigating agency, as is apparent from various circumstances, discussed above. The testimony of another PW- 19, namely, Shri Pritho lends support to this conclusion. According to the prosecution, recovery of Rs. 1 750/- is stated to have been made by this witness as a part of the booty handed over to him by accused Kabli to be further entrusted to the mother of the accused. This witness, while appearing before the trial Court, has categorically stated that he was given beatings by the police and the money was extracted from him. Rather, this witness has denied the factum of any money having been handed over to him by accused Kabli for the purpose, referred to above or he having handed over the same to the mother of Kabli accused. Thus, the cumlative effect of the above said recoveries allegedly having been made pursuant to the disclosure statements of either of the accused, is that the same appears to be of involuntary character and, thus, inadmissible in evidence. It does not, in any way, connect either of the accused persons with the commission of the offence.
18. Apart from the above, the evidence with respect to the presence of human blood on the sweater of Kabli accused is also of no help to the prosecution. The prosecution never made an effort to produce any evidence to establish that the aforesaid wearing apparel was stained with the blood of the deceased or that it belonged to the blood group of the deceased, despite the fact that various clothes profusely stained with blood of the deceased, had been taken into possession during investigation. No attempt has been made to get them compared through the Serologist. The prosecution could have, with a slightest effort, established this vital lacuna, linking Kabli accused at least, with the commission of the offence.
19. Another lacuna in the prosecution version is that none of the accused has been linked with the commission of the offence. PW-1, Mohammad Ayub, was a stranger. Even if it be believed that he had heard the names of the accused persons at the material time, he had met them only once or at the most twice, so far as two accused except Chuni Lal are concerned and that too for an in significant period. In any case, he had met Chuni Lal accused only for about 5 minutes. The Police of Police Station, Kihar was apprised of the incident through Ex. DA-Rapat Rojnamcha Wakyati by MHC of Police Post, Sanghani that villagers of Paryungal had a quarrel with butchers of Jammu & Kashmir and no particular names were known at that time. Thus, in such circumstances, it was very much necessary and expedient for the prosecution to have established the identity of the accused persons and this could have been possible, had the accused persons been subjected to identification parade after observing the codal formalities. No attempt in this direction has been made. Resultantly, accused remained unidentified and in the absence of other credible evidence, linking the accused with the commission of the offence, they are to be presumed as innocent. Apart from the above, names of Mohammad Salim PW-2 or Shaukat Ali are not mentioned in the FIR indicating that PW-1, Mohammad Ayub, had narrated the incident immediately after its occurrence to either of them. At this stage, it would not be out of place to mention that as per record, the prosecution appears to have ensured to examine only those witnesses who belonged to the community of the deceased i.e. Mohammadan community and dropped all those who belonged to other community in relation to the alleged material evidence. Further, these witnesses were either from one family having earlier migrated from Jammu and Kashmir and some of them fundamentalists. Why this mode was adopted, is best known to the prosecution.
20. Another lacuna which emerges from the prosecution evidence is that prosecution had visited the spot immediately. As per its version, all the accused as also the deceased and Mohammad Ayub, PW-1, enjoyed 'Bidis' and while they were in the midst of enjoyment. PW-1 and the deceased were suddenly assaulted allegedly by the accused. Had the occurrence occurred in this manner, then in the normal course, the police would have naturally taken the burnt left over parts of 'Bidis' into possession, as a piece of corroborative evidence to that of PW-1 indicating that the incident had occurred at the time, place and the manner, deposed by PW- l the sole witness. Unfortunately, no attempt, in this respect, has been made. This important piece of evidence has also been left over, creating a wide gap with respect to the credibility attached to the prosecution version.
21. To sum up the delay in recording the FIR land the contradictions, improvements coupled with unnatural conduct of Mohammad Ayub-PW-1 in his statement, makes the prosecution version highly incredible, unnatural and unreliable. The statement of PW-1 is so unsatisfactory that we cannot place any reliance thereupon. From whatsoever angle the prosecution version may be viewed, it appears to be of doubtful nature to us.
22. In view of the discussion made above, there is no gainsaying the fact that the prosecution case suffers from such inherent and improbable infirmities as to give rise to a reasonable doubt about the guilt of either of the accused persons, named above. Accordingly, we hold that all the accused are entitled to the benefit of a reasonable doubt. Hence we set aside the judgment, conviction and sentence passed by the learned Sessions Judge and direct the acquittal of the accused persons forthwith.