Sanjay Karol, J.—Dead body of Sarwan Singh (deceased) was recovered on 15.6.2009 from the dry well owned by certain private persons. On 19.6.2009, member of the family of the deceased lodged a missing report, without raising any finger of suspicion against any one. Since investigation did not reveal involvement of any person in the crime, as such, untraced report was filed in Court.
2. Hence, during the course of investigation of another crime, in relation to which FIR stood registered at Police Station, Nalagarh, present accused Taranjit Singh and his co-accused Jatinder Kumar, on 18.6.2010, while in custody, made a confessional statement of having murdered the deceased with swords and thereafter dumped the body in the well. Such information came to be passed on to Police Station, Una, having jurisdiction of the place from where initially the dead body was recovered and also accused ordinarily reside. Accused came to be arrested by the police officials of Una and during their custody, made disclosure statements, leading to discovery of the purse of the deceased and weapon of offence, i.e. swords, so concealed by them.
3. Investigation revealed dual motive of crime : (a) perhaps involvement of the deceased with the sister of accused Jatinder Kumar, (b) dispute pertaining to money inter se the deceased and the accused, more specifically Jatinder Kumar.
4. With the completion of investigation, challan came to be presented in the Court and accused Taranjit Singh stands charged for having committed offences punishable under the provisions of Sections 302 & 201, both read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act, 1959; and accused Jatinder Kumar stands charged for having committed offences under Sections 302 of the Indian Penal Code and 25 of the Arms Act, 1959.
5. It is a matter of record that during trial, accused Taranjit Singh was declared as a proclaimed offender and as such, trial qua him was segregated. Lateron, after his arrest, he participated in the proceedings and separate trial conducted qua him. It is a matter of record that based on similar, but separate, evidence led by the prosecution, both the accused stand convicted.
6. Vide judgment dated 28.9.2015, passed by Additional Sessions Judge-I, Una, Himachal Pradesh, in Sessions Case No.11/11, titled as State of Himachal Pradesh v. Taranjit Singh, accused Taranjit Singh stands convicted for having committed offences punishable under the provisions of Section 302 read with Section 34 of the Indian Penal Code, and sentenced to undergo imprisonment for life and pay fine of Rs. 25,000/-, and in default thereof to further undergo rigorous imprisonment for a period of one year. However, he stands acquitted of the offences charged for under Sections 201 read with Section 34 of the Indian Penal Code and 25 of the Arms Act.
7. It is also a matter of record that both the accused have preferred separate appeals, which are being disposed of vide separate judgments. Noticeably, State has not preferred any appeal against the judgment of acquittal of the accused of offences under Sections 201 read with Section 34 of the Indian Penal Code and 25 of the Arms Act.
8. Trial Court framed the following points for consideration and answered Point No. 1 in the affirmative, but expressed its doubts with regard to Point No.2:
1. Whether the prosecution has proved beyond all reasonable doubt that prior to the morning of 15.6.2009 in the area of Raipur Sahoran within the jurisdiction of Police Station, Una, accused Taranjit @ Badal in furtherance of common intention with his co-accused Jatinder had committed the murder of Sarwan Singh?
2. Whether the prosecution has also proved beyond reasonable doubt that accused Taranjit was in possession of sword, prohibited arm and in furtherance of common intention with his co-accused Taranjit had tried to cause disappearance of evidence?
9. While convicting the accused in relation to the charge of murder, trial Court culled out the following circumstances:
"(a) Ante mortem injuries on the person of the deceased.
(b) Presence of blood stains on the edge of the well and roof of the tube well.
(c) Accused Taranjit was in custody in case FIR No.78/2010 of P.s. Nalagarh along with his co-accused Jitender alias Jyoti and during interrogation accused Taranjit disclosed that he along with his co-accused Jitender committed the murder of a sikh gentleman in the area of District Una and threw the dead body in a well in Santoshgarh area.
(d) Identification of the place of occurrence by the accused.
(e) Small sword has been recovered at the instance of co-accused Jatinder and purse and sword had been recovered t the instance of accused Taranjit @ Badal."
10. Additionally, learned Additional Advocate General has pressed the following circumstances:
(a) motive of crime,
(b) after receiving call from accused Jatinder, deceased left his house with certain amount of cash but never returned, and
(c) deceased was lastly seen in the company of the accused.
11. Admittedly there is no eye-witness to the alleged incident in relation to which accused stands convicted. Prosecution case primarily rests upon circumstantial evidence. The law on circumstantial evidence is now very well settled. To base a conviction on circumstantial evidence, prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events, as would permit no conclusion other than the one of guilt of the accused. Circumstances to be proved have to be beyond reasonable doubt and not based on principle of preponderance of probability. Suspicion, howsoever, grave, cannot be a substitute for a proof and courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.
12. In Bodhraj alias Bodha & others v. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon''ble the Supreme Court of India held that:-
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. �����.."
10. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
(Emphasis supplied)
13. Also it is a settled proposition of law that when there is no direct evidence of crime, guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with crime. All the links in the chain of circumstances, must be established beyond reasonable doubt, and the proved circumstances should be consistent only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence. [See: Pudhu Raja and another v. State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu v. State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh v. State of Gujarat, (2010) 15 SCC 622; Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172; Trimukh Maroti Kiran v. State of Maharashtra, (2006) 10 SCC 681; Mulakh Raj and others v. Satish Kumar and others, (1992) 3 SCC 43; Ashok Kumar Chatterjee v. State of M.P., 1989 Supp. (1) SCC 560; Balwinder Singh v. State of Punjab, (1987) 1 SCC 1; State of U.P. v. Sukhbasi, 1985 Supp. SCC 79; Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330; Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99; and Eradu v. State of Hyderabad, AIR 1956 SC 316]
14. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, Hon''ble the Supreme Court of India held that:-
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [Vide: Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, (2011) 3 SCC 109 : AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., (2012) 5 SCC 777].
14. In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 : AIR 1973 SC 2773, this Court observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.""
15. Relying upon its earlier decision in Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343, Hon''ble the Supreme Court of India in Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509, again reiterated that:
"15. �� Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, the accused may be convicted on the basis of such circumstantial evidence."
16. Keeping in view the aforesaid principles, we now proceed to discuss the evidence on record.
17. Insofar as identity of the deceased is concerned, there is no dispute. In any event, it stands established through the testimony of Bittu Singh (PW-1) and Bhagwan Singh (PW-3), both relatives of the deceased.
18. That dead body of the deceased was recovered from the well in village Raipur Sahoran stands established on record. Ram Kumar (not examined) saw stains of blood on the edge of the well and informed Pradhan Harpal Singh (PW-23), who visited the spot and after seeing the dead body inside the well, which was dry, informed the police, when police official Sewa Singh (PW- 18) reached the spot and, in turn, informed SHO Dharam Chand (PW-17) about the same. After reaching the spot, Dharam Chand got the dead body taken out from the well, prepared inquest report (Ex.PW-1/B), took into possession mobile cover (Ex.P-10), blood stained clothes, i.e. Patka & Parna (Ex.P-8), shoes (Ex.P-9), plucker (Ex.P-11), vide memo (Ex.PW-5/B). He sent Rukka (Ex. PW-21/B) to the Police Station, on the basis of which FIR No.224/09, dated 15.6.2009 (Ex.PW-24/D), for commission of offence under Section 302 of the Indian Penal Code, came to be registered at Police Station, Sadar (Una), District Una, Himachal Pradesh.
19. It has come on record through the testimony of ASI Sewa Singh (PW-18) that the spot, from where the dead body was recovered, was got demarcated from the revenue official, who issued relevant documents (Ex.PW- 6/B & 6/C), which reveal that the land was owned by one Kishan Devi and possessed by tenants.
20. At this juncture, it be only observed that prosecution has not ruled out the possibility of involvement of these persons or that of Ram Kumar, who first spotted the dead body, in the crime.
21. It is also a matter of record that with the recovery of dead body, FIR came to be registered and untraced report filed in Court. Such fact is evident from the testimony of Amit Sharma (PW-20),
22. Prosecution wants the Court to believe that after a period of one year, while the accused were being interrogated, in connection with another FIR No.78/2010, so registered at Police Station, Nalagarh, accused Taranjit Singh made a disclosure statement that he along with coaccused Jatinder @ Jyoti had murdered the deceased and thereafter thrown his dead body in the dry well.
23. To establish such circumstance, our attention is invited to the testimonies of Inspector Prem Lal (PW-16) and Inspector Om Parkash (PW-19).
24. Law on disclosure/confessional statement is now well settled. Sections 25, 26 and 27 of the Indian Evidence Act read as under:
"25. Confession to police officer not to be proved. No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
25. It be observed the principle of law as laid down in Pulukuri Kottaya and others v. Emperor, AIR (34) 1947 Privy Council 67, which is reproduced herein under, has been consistently followed by Hon''ble the Supreme Court of India.
"[10] � � On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships'' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
(Emphasis supplied)
26. In Bodhraj alias Bodha & others v. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon''ble Supreme Court of India, held as under:-
"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short ''the Evidence Act'') is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan, (1972) 4 SCC 659 : AIR 1972 SC 3 and Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828 : AIR 1976 SC 483. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practise the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See: State of Maharashtra v. Danu Gopinath Shinde, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
(Emphasis supplied)
27. In Harivadan Babubhai Patel v. State of Gujarat, (2013) 7 SCC 45, Hon''ble Supreme Court of India, held that:-
"17. In this context, we may usefully refer to A.N. Venkatesh and another v. State of Karnataka [(2005) 7 SCC 714] wherein it has been ruled that:
"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped boy was found � would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. �"
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admin) [(1979) 3 SCC 90: AIR 1979 SC 400]. It is worth noting that in the said case, there was material on record that the accused had taken the Investigating Officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.
18. In State of Maharashtra v. Damu [(2000) 6 SCC 269], it has been held as follows: -
"35. � It is now well settled that recovery of an object is not discovery of a fact as envisaged in Section 27 of the Evidence Act, 1872. The decision of the Privy Council in Pulukuri Kottaya v. King Emperor [AIR 1947 PC 67] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
19. The same principle has been laid down in State of Maharashtra v. Suresh [(2000) 1 SCC 471], State of Punjab v. Gurnam Kaur and others [(2009) 11 SCC 225], Aftab Ahmad Anasari v. State of Uttaranchal [(2010) 2 SCC 583], Bhagwan Dass v. State (NCT) of Delhi [(2011) 6 SCC 396: AIR 2011 SC 1863], Manu Sharma v. State [(2010) 6 SCC 1: AIR 2010 SC 2352] and Rumi Bora Dutta v. State of Assam [(2013) 7 SCC 417]."
28. As such confessional statement made to the police officials cannot be used against the accused, in view of the aforesaid statement of law.
29. That apart, we find the version of the witnesses to be unbelievable and unworthy of credence. There are material contradictions on the issue. Whereas, Inspector Prem Lal states that it was accused Taranjit Singh, who had disclosed "to me" that "he along with coaccused Jyoti @ Jatinder about a year back near Mehatpur Distirct Una had murdered one Sikh with ''Kirpan'' and had thrown his dead body in the dry well and further that the name of the victim was known to aforesaid co-accused", Inspector Om Parkash states that "I had lodged rapat Ext. PW-23/A with regard to information sent to PS, Sadar, Una".
30. Now, we find the confessional statements to have been made by both the accused, naming the deceased, to Om Parkash, but however such version is self-contradictory, for in the cross-examination part of his testimony, the witness admits that "no statement of accused during interrogation was recorded by me but was disclosed to me by investigating officer concerned". Further, Inspector Om Parkash wants the Court to believe that he sent the information on phone, whereas according to Inspector Prem Lal, it was he who had telephonically furnished such information. Now significantly, no independent person was associated by the police at the time of such disclosure/ confessional statement. Also, such statement was not reduced into writing. It has nowhere come on record that both the accused were under police custody in relation to the case registered at Police Station, Nalagarh.
31. Hence, we do not find this circumstance to have been established, much less beyond reasonable doubt.
32. At this juncture, it be only observed that prosecution has miserably failed to establish the motive of crime. Conjoint reading of testimonies of Bittu Singh (PW- 1) and Bhagwan Singh (PW-3) reveals that after receiving call from accused Jyoti, deceased, by taking Rs. 50,000/ Rs. 60,000/- in cash, left the house. This was on 14.6.2009. Apparently, there was some business transaction between the accused and the deceased. Also, accused Taranjit Singh owed money to the deceased. Further, photograph of sister of accused Jatinder was found on the mobile of the deceased. Significantly, both these witnesses admit that missing report dated 19.6.2009 (Ex.PW-12/B) came to be lodged by their father at Police Station, Ajnala. Now this missing report does not, even remotely, suggest complicity of the accused. In fact, it does not even name any one or point out finger of suspicion against anyone, much less the deceased, of having murdered the deceased. Missing report came to be recorded subsequent to the recovery of the dead body. Further, Bittu Singh admits that he had never seen accused Taranjit Singh with the deceased. Business dealings were only between accused Jyoti and the deceased. He does try to explain that on telephone Taranjit Singh used to have conversation with the deceased, but then there is no record establishing such fact. Even the mobile phone of the deceased or the accused has not been placed on record.
33. Significantly, the witnesses want the Court to believe that immediately after lodging of the missing report, family of the deceased visited the houses and questioned both the accused, to whom they failed to give any satisfactory reply. Obviously, they are telling lies, for the missing report came to be lodged on 19.6.2009 and dead body so recovered on 15.6.2009 came to be identified on 22.6.2010. Also, no finger of suspicion was raised by them.
34. On the very same issue, our attention is invited to the testimony of police official SI Harjit Singh (PW-10), according to whom, during investigation accused Jatinder confessed of having murdered the deceased for the reason that he was in debt to him and that his sister''s photograph was found on the mobile phone of the deceased. Again, this is a confessional statement before a police official, which also never came to be reduced into writing, hence, cannot be read in evidence, for being absolutely uninspiring in confidence.
35. Hence, the motive of crime cannot be said to have been established on record.
36. Our attention is invited to the disclosure statements made by accused Taranjit Singh (Ex.PW-7/A) in the presence of Dharam Pal (PW-4) as also Ex. PW-18/A made in the presence of HC Albel Singh (PW-15) and independent witness Amrik Singh. The former pertains to the concealment of purse of the deceased and the latter about the concealment of sword, with which deceased was murdered. Purse (Ex.P-12) came to be recovered pursuant to disclosure statement (Ex.PW-7/A) in the presence of the very same witnesses and the sword came to be recovered pursuant to disclosure statement (Ex.PW-18/A) in the presence of Ravinder Kumar (PW-5). We do not find even this circumstance to have been established beyond reasonable doubt, for we find presence of Dharam Pal on the spot to be doubtful. He is not a resident of the area. If the police had associated the Pradhan during investigation, why would an unknown person be associated in recording statements of the accused, against whom, originally, no finger of suspicion came to be pointed out by anyone. Significantly, independent witness Amrik Singh was given up by the prosecution on 12.5.2015, where after only statement of police official HC Albel Singh (PW-15) came to be recorded, with regard to the disclosure statement.
37. Recovery of purse is also uninspiring in confidence, for none has been able to establish that the purse actually belonged to the deceased. Also, recovery came to be effected from an open public place, i.e. Railway bridge, which is accessible by general public. Also, such kind of purses are easily available in the market.
38. Dr. Ravinder Mohan (PW-21), who conducted postmortem, found the following injuries on the body of the deceased:
"1. Lacerated wound on left upper part of forehead 2cm x 1.5 cm.
2. Lacerated wound 2.5 cm x 1 cm on lateral angle of right eye.
3. Lacerated wound on right side of face and right ear pinna.
4. Abraded wound on tip of right shoulder, multiple abrasion on right gluteus region superiorly, multiple abrasions on both knee joints anteriorly.
5. Big incised (slit) wound on left side of neck which was gaping starting from near angle of muddle tapering upto mid line anteriorly on neck. Internal carotid and other blood vessel, muscles of neck are cut in this area cleanly and are visible through the wound. The wound was 12 cm in length and 5 cm in width.
6. There was visible/fracture of frontal bone left side.
7. Fracture humerus right upper end and fracture pelvis right iliac crest."
39. According to the doctor, Injury No.5 could have been caused with weapon (Ex.P-1 or P-2). But significantly, there is no scientific evidence linking the weapon of offence to the accused. Neither traces of blood nor fingerprints were found.
40. Findings on circumstance (a), as culled out by the trial Court, in the affirmative, that the deceased had died due to injuries inflicted with swords (Ex.P-1 & P-2) cannot be said to have been borne out from the record. Evidence of the doctor is only suggestive in nature. There is no link evidence corroborating such fact.
41. While returning findings on circumstance (c), trial Court erred in ignoring the statutory provisions, apart from the fact that the relevant FIR so registered at Police Station, Nalagarh, was never proved on record. Also, there is nothing on record to establish that either of the accused, at the time of making confession, was either in detention or police custody.
42. While dealing with circumstance (e), trial Court itself found the prosecution not to have established the factum of destruction of evidence or sword (Ex.P-1), a prohibited arm, to have been carried without licence.
43. Trial Court, in the absence of any evidence, presumed that the deceased was called by the accused on telephone. The Court lost sight of the fact that none of the relatives of the deceased, so examined in Court, were privy to such conversation. Also where did the money came from and to whom it was handed over has not come on record. Money has not been recovered by the police. Further, Court presumed the common intention of both the accused in killing the deceased. There is nothing on record to establish that the deceased was lastly seen in the company of the accused.
44. From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused.
45. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. It cannot be said that prosecution has been able to prove its case that the accused in furtherance of the common intention of his co-accused Jatinder Kumar @ Jyoti, committed murder of Sarwan Singh, caused disappearance of evidence and also possessed sword, which is a prohibited arm, without licence.
46. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 28.9.2015, passed by Additional Sessions Judge-I, Una, Himachal Pradesh, in Sessions Case No.11/11, titled as State of Himachal Pradesh v. Taranjit Singh is set aside and the accused is acquitted of the charged offences. He be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to him accordingly. Release warrants be immediately prepared. Appeal stands disposed of, so also pending application(s), if any.
