JUDGMENT
Bhawani Singh, J.
1. Accused Khem Singh alias Khemo and Dass have challenged the judgment of Sessions Judge, Chamba in Sessions Case No. 18 of 1989 decided on 25-3-1991 whereby they have been convicted under Section 302 read with Section 34 of Indian Penal Code and sentenced to rigorous imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for two months. Accused Keshru alias Khinna has been acquittd and no appeal against his acquittal has been preferred by the State.
2. Prosecution case is that the accused committed lurking house trespass by night and murdered Nirmal (70), his wife Hardei (50) and his brother Garbha (65). All the deceased were living in village Kalyog. Village people including Chhatar Singh (PW 1), Mehar Singh (PW3) and Narotam (PW4) found the dead bodies in the kitchen portion of the house since they had gone there after noticing the cattle of deceased Nirmal roaming and damaging his maize crop in the field.
3. Accused are residents of village Kiha situated at a short distance from Kalyog. Baldev (PW 5) is the son of deceased Nirmal from his previous wife and had started living in a village different from that of deceased Nirmal. Janki (PW 13) is the sister of Hardei. She resides in villalge Bharmoi near Kalyog. She claims that the deceased were seen alive by her in the evening of 31st July, 1989 when the deceased were repairing the roof of their house.
4. According to the prosecution, Nirmal had adopted accused Khem Singh. The latter was living with the former at his house for the last about 8/10 months whereafter the relations between the two got strained as a result of which, Nirmal ousted accused Khem Singh from his house. As a result of this ouster, accused Khem Singh lost the chances of getting the land and property of Nirmal. Apart from killing the deceased, the accused took away jewellery and other articles from the house. Thus, the motive for the commission of the crime, according to the prosecution, is the turning out of accused Khem Singh by deceased Nirmal from his house and his deprivation of the land and other property.
5. The dead bodies were noticed in the evening of 1-8-1989. Up-pradhan Narotam sent Chhatar Singh to Police Station, Tissa for reporting the matter. First Information Report (Ex. PA) was accordingly lodged at P.S. Tissa on 2-8-1989 at 7 p.m. It has been recorded by MHC Sudarshan Kumar (PW 15). Anand Kumar, Officer In charge of the Police Station (PW 15) was away to Chamba. The case file was sent to him by MHC Sudershan Kumar through constable Gajinder Singh. By the time Gajinder Singh reached Chamba, SHO Anand Kumar had left Chamba on foot. Accordingly, the case file was handed over to SHO Anand Kumar at village Kapahri Galla at about 9 or 9.30 p.m. on 2-8-1989. SHO Anand Kumar came to the place of occurrence and reached there at about 11 p.m. In the morning of 3-8-1989, the place of occurrence was inspected and. rough sketch (Ex. PW-17/D) of the place of occurrence was prepared. Dead bodies were photo-graphed through Police Photographer constable Khialu Ram (PW 10). Inquest reports (Ex. PW-17/A, Ex. PW 17/B and Ex. PW-17/C) were prepared relating to the deceased persons.
6. The dead bodies were sent for postmortem examination through Constable Hoshiar Singh. Some blood soaked earth from around the three dead bodies was also taken into possession vide Memos. Lock (Ex. P-1) of Milan Super, lying broken near the western wall of the house, was also taken into possession and sealed in a cloth parcel through Memo Ex. PE witnessed by Narotam and Man Singh. Lamp stand (Ex. P-2) was also seized by SHO Anand Kumar from the house of deceased and sealed in a separate parcel vide Memo (Ex. PF) witnessed by Narotam and Man Singh:
7. At the District Hospital, Chamba, Dr. Hemant Sharma (PW 12) conducted the postmortem examination. He found various injuries on the bodies of the deceased as noticed in the post-mortem reports and his statement in the Court. According to him, the death of deceased Garbha was caused because of fracture of skul, intracranial haemorrhage, leading to shock death. In the case of Nirmal, the death was also caused in the similar way, while in the case of Hardei it was due to haemorrhagic peritonitis leading to shock and death. The probable duration between the death and the post-mortem examination in the case of all the three accused was more than 72 hours. Chemical Examiner has also filed his reports (Ex. PW 17-I, Ex. PW-17/J and Ex. PW-17/K). No poison or alcohol has been detected.
8. Further case of the prosecution is that during the night intervening 2nd and 3rd August, 1989 at about 1 a.m., all the accused came to the house of Narotam in village Banjala and knocked at the door. Narotam had returned from village Kalyog and was sleeping in his house. After opening the door, accused disclosed to him that they had committed a mistake. Accused Khem Singh stated that he was adopted as a son by Nirmal and under some fit, he had commited the murder of Nirmal, Garbha and Hardei with the assistance of Dass and Keshru. It was also informed that he had caused the injuries to the deceased with “CHHURA” (knife) while Dass had used DALETH (a wooden piece). Keshru, according to Khem Singh, kept on standing at the door, while the murder was being committed by the other two. Accused Dass also confessed that he had given beatings to the deceased with ‘Daleth’. Dass had also stated that he had been told by accused Khem Singh that Nirmal had sufficient property and all of them would share it after killing Nirmal. All of them requested him to save them but they were advised to go to the police because he (Narotam) was unable to do anything in the matter. After making the confession, they left his house and Narotam slept in his house. In the morning of 3-8-1989, Narotam went to village Kalyog and informed the Police Inspector about the confession of the accused.
9. The accused were arrested on 4-8-1989 for murdering the deceased. During the course of investigation and while in police custody, Khem Singh made disclosure statement to SHO Anand Kumar in the presence of Tej Singh (PW 2) and Sakh Mohammad (DW 2) that he along with Dass and Keshru had committed the murder of deceased in the night of 31st July, 1989 and had removed the silver and golden jewellery along with woollen ‘chaddars’, “Patti” and currency notes worth Rs. 57/- from a wooden box after breaking its lock. It was also disclosed by these accused that they had kept concealed woollen chaddars, Patti etc. in a gunny bag in Kud, under a stone in Raj Mittar Nallah. The accused Khem Singh also disclosed that he had kept concealed the container having jewellery near Mandukani under a stone in a pit in Beer (boundary) of his maize field. The knife had also been concealed in his house under a Gan (beehive box). The currency notes worth Rs. 57/ – had been kept in a basket in his house under a glass. Accused Khem Singh also said that he and accused Dass alone had the knowledge about the woollen ‘chaddars’, ‘Patties’, knife and currency Notes and the same could be got recovered. This disclosure statement was recorded vide Memo (Ex. PB) thumb-marked by Khem Singh and witnessed by Tej Singh and Sakh Mohammad.
10. After making the disclosure statement (Ex. PB) accused Khem Singh led SHO Anand Kumar and others to his house in village Kiha and got recovered Munani (Ex. P3) from underneath a beehive box. It had blood stains, it was seized and sealed after wrapping it in a cloth parcel. Currency notes worth Rs. 57/- were also recovered from a glass, as per the disclosure statement. They were also separately sealed and the Munani was at a later stage sent to the Chemical Examiner and the report of the Chemical Examiner (Ex. PW-17/M) disclosure blood stains though the origin of the same has not been determined by the Serologist to whom it was sent for examination. Accused Khem Singh also took the police party and the witnesses to his maize field and took out a container from a pit underneath a stone. It (Ex. P-24) contained jewellery articles like gold long, golden tikka, golden Man Tikka, silver Sangli, one pair of Panjeb, one silver Har, three silver rings, three button, one empty container, one old handkerchief having some money. These jewellery articles were identified by Smt. Janki who was present at the time of recovery of these articles, as belonging to the deceased Hardei. They were taken into possession and sealed in a cloth parcel. The memo was singed by SHO Anand Kumar and witnessed by Noor Mohammad and Budhi Parkash. Janki had thumb marked the Memo (Ex. P-1) as an identifier of the jeweller articles. Accused Khem Singh also took the police party including Noor Mohammad and Budhi Parkash to the Khud and took out a gunny bag (Ex. P 46). It contained 7 woollen chaddars, 4 single chaddars, one bed sheet and two woollen Patties. These were also identified by Smt. Janki on the spot as belonging to deceased Hardei. These were also taken into possession through Memo (Ex. PJ) singed by SHO Anand Kumar and witnessed by Noor Mohammad and Budhi Parkash. It was also thumb-marked by Smt. Janki. It was accused Dass who, on interrogation during police custody, disclosed that he had kept concealed “Daleth”, used by him for committing the murder, behind a wooden box and could get the same recovered. This statement (Ex. PC) was prepared and signed by him. It was witnessed by Tej Singh and Sakh Mohammad. As a result of this disclosure statement, the accused Dass took the police party to the house of deceased Nirmal and produced Daleth (Ex. P-39) from behind a wooden box where it was lying concealed. It had blood stains and was seized. The recovery memo is witnessed by Noor Mohammad and Budhi Parkash, present there. It was sent to the Chemical Examiner and Assistant Serologist for examination. Human blood was found thereon but the grouping of the same could not be detected since it was not sufficient for test, as per the report of the Assistant Serologist.
11. After the arrest of the accused, their wearing garments were also seized by the police. Shirt (Ex. P44) and Pant (Ex. P45) of accused Dass were seized through Memo (Ex. PN) and shirt (Ex. P42) and Pant (P43)” of accused Khem Singh were also seized. According to the prosecution, these articles contained blood stains. The recovery memos were signed by SHO Anand Kumar and witnessed by Sakh Mohammad and Gumani (PW 7). Shirt and Pant of Keshru sized by the police are (Exs. P40) and (P41). Recovery memos of these articles are also witnessed by Sakh Mohammad and Gumani. On examination blood stains of human origin were found on these cloths.
12. During the trial, the prosecution examined 17 witnesses in order to substantiate the charge against the accused. In their examination under Section 313, Cr.P.C., the accused have denied the prosecution case completely. It has been denied that accused Khem Singh was adopted as a son by deceased Nirmal and that he had lived with him for some time and that he was turned out on account of which he had been entertaining grudge against the deceased. Making of extra judicial confession before Narotam has also been denied. Similarly, other accused have also denied having gone to the house of Narotam for making the extra-judicial confession. Commission of theft, making of disclosure statement and consequential recoveries have also been denied. They say that the wearing garments were seized and the blood stains on them was on account of their participation in dealing with the dead bodies during the investigation and accused Dass had even gone to the hospital along with the dead bodies. Khem Singh and Dass say that Tej Singh and Narotam had contested panchayat elections against Bhagi Ram who is related to accused, on account of which these witnesses have deposed against them. The accused have examined Bhagi Ram (DW-1) and Sakh Mohammad (DW-2) in defence.
13. The accused were tried for offence under Sections 460/302/34, I.P.C. However, accused Khem Singh and Dass have been convicted under Sections 302/34, I.P.C. while the third accused has been acquitted. The trial Court found that the prosecution has been able to prove the case on the basis of evidence like extra-judicial confession before Narotam and other recoveries made in the cse at the instance of the accused. Motive on the part of the accused Khem Singh and Dass has also been taken into consideration to convict them for killing the deceased in furtherance of their common intention.
14. Shri Harish Behl, the learned counsel for the accused has strenuously assailed the impugned judgment. According to the learned counsel, no conviction is possible on the basis of weak, conflicting and concocted evidence of the prosecution. It was also contended that the trial Court has not properly appreciated the evidence with the result that erroneous conclusions against the accused have been drawn. No case has been proved against any of the accused and the judgment is liable to be set aside. Shri R.K. Sharma learned Deputy Advocate General for the State also made serious attempts in defence of the impugned judgment. In order to understand the respective contentions raised by the learned counsel for the parties, it is necessary to examine the matter with reference to the case file.
15. There is no eye witness to the occurrence. The prosecution case it entirely based on circumstantial evidence. In order to record conviction on the basis of circumstantial evidence, it is mandatory that all the circumstances connecting the accused with the crime ought to be established conclusively. All the circumstances put together must lead to the only conclusion that the offence is committed by the accused. In Hanumant v. State of M.P. AIR 1952 SC 343 : (1953 Cri LJ 129), it has been held that at pages 131 and 132, of Cri LJ:
In dealing with circumstantial evidence there is always the danger that conjectaure or j suspicion may take the place of legal proof. It is therefore, right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
16. Again, in Sharad Birdhi Chand Sharda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738) the Apex Court said that (at pages 1655 and 1656; of AIR):
152. A close analysis of his decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :-
(1) the circumstances from which the : conclusion of guilt is to be drawn should be i fully established, It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 293 : AIR 1973 SC 2622: (1973 Cri LJ 1783) where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjecutres from sure conclusion.
(2) 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.
(3) The circumstances should be of a conclusive nature and tendency,
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) 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.
17. Further, in Prem Thakur v. State of Punjab, AIR 1983 SC 61 : (1983 Cri LJ 155), Chief Justice Y. V. Chandrachud, speaking for the court, observed in para 11 as under at page 63, of AIR:–
11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt.
18. In Kansa Behara v. State of Orissa AIR 1987 SC 1507: (1987 Cri LJ 1857), it was observed as under (in para 12 of the judgment) at page 1859; of Cri LJ:
… It is a settled rule of circumstantial evidence that each one of the circumstances has to be established beyond doubt and all the circumstances put together must lead to the only one inference and that is of the guilt of the accused….
19. In Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3 SCC 319 : (AIR 1988 SC 1274) it is held as under at page 1284; of AIR:–
It is, therefore, well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
20. It is also relevant to refer to Kishore Chand v. State of H.P. AIR 1990 SC 2140 where in paras 4, 5 and 6 Justice K. Ramaswamy, speaking for the Court observed that at page 2144:–
4. The question, therefore, is whether the prosecution proved guilt of the appellant, beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.
5. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of he accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.
6. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The Court has to consider the evidence and decide whether the evidence prove a particular fact or not. Whether the fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent, with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all t he chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone.
(See also Rahim Beg v. State of U.P., 1972 SCC (Cri) 827 : (1972 Cri LJ 1260) and Jagta v. State of Haryana, AIR 1974 SC 1545 : (1974 Cri LJ 1010).)
21. There is a serious doubt about the making of extra-judicial confession by the accused in this case. It has been denied by the accused. Narotam is not known to them previously. He lives in a different village. He was available at the spot. In case, the accused wanted to make confession of the guilt, they could have met him in the village of the deceased. The distance between his village and the village of the deceased is 4 to 5 kms. It was raining. According to case diary of 2-8-1989, SHO reached the place at 9.15 p.m. and not at 11 p.m. as stated by him. He closed the investigation at 11.45 p.m. Narotam (PW 4) and Janki (PW 13) were relieved from investigation at that time. Narotam says that he reached his village at 12.30 or 1 a.m. but according to Sakh Mohammad (DW 2) he slept in the house of Pritam in the same village on that night. This version appears to be correct for the reason that the police started investigation at 5.30 a.m. on 3-8-1989 and Narotam has been shown present at that time. According to Narotam, his statement was recorded on 3-8-1989 at 7.30 a.m. but according to the case diary, it appears to have been recorded after 2 p.m. The case diary does not make mention about the so-called extra-judicial confession made to Narotam by the accused.
22. With the aforesaid background, we proceed to examine whether the statement of Narotam that the accused came to his house knocked at his door and confessed the commission of the crime for the motive set up by the prosecution, can be believed. Answer is clearly in the negative. He could not have come to his village after covering distance of 4, 5 Kms. on a rainy night after 11.45 p.m. His presence at his house is excluded by Sakh Mohammad (DW 2) also. The accused could not have come that far to make the extra-judicial confession. The door knock should have been noticed by the wife of Narotam who had not only responded to the same but also lit the lamp and entered into conversation with the accused. It is hardly possible to believe that during all this time, the wife of Narotam did not come to know all this and did not get up to see the accused and hear the conversation going on. The prosecution has not said anything on this aspect. Further, it is not possible to believe that even after coming to know about the assailants of the deceased, Narotam would go to sleep and not inform either his wife or the villagers on that very night or the next morning. He did not inform anyone on the way or in the village of the deceased. He did not inform the police on meeting them. The only conclusion which can be drawn from this nature of evidence and the conduct of Narotam is that the accused did not go to the village of Narotam as alleged nor any extra-judicial confession was made to him. This part of prosecution case is highly improbable and undependable. It is, therefore, liable to be rejected. The trial Judge has not correctly appreciated this part of prosecution evidence and has drawn imaginary, unreasonable and erroneous conclusion, with the result that the matter has not been correctly appreciated.
23. We turn to the motive part of the prosecution case. True it is that, it is not necessary for the prosecution to prove motive of the commission of the crime. However, there are cases where motive is essential for the commission of crime since in most cases crimes are committed for motive. In the present case also, motive plays essential part and the prosecution has also come forward with the plea that the crime was committed for motive as already noticed above. In our considered opinion, the motive alleged by the prosecution is thoroughly weak. It is not possible to believe that accused Khem Singh had been adopted by the deceased and was living at the house of the deceased for number of months before he was turned out and deprived of the property. It has been denied by the accused in his statement under Section 313 Code of Criminal Procedure. It has also been denied by his defence witnesses. Moreover, the parties belong to two different communities. The accused is Rajput by Caste whereas the deceased belonged to Scheduled Caste. Moreover, deceased Nirmal had a son named Baldev from his previous wife, though living in a different village. In the absence of evidence, it cannot be concluded that Baldev had also been thrown out and deprived of the property and in his place accused Khem Singh had been adopted. It can, therefore, be said that the prosecution has failed to prove motive for the commission of the crime.
24. The prosecution next placed reliance on recoveries made in this case. It was stated that these recoveries were made at the instance of the accused, therefore, they are connected with the commission of crime. We see no substance in this submission. The factum of loss of articles from the house of the deceased was stated to the police for the first time by Janki (PW 13) on 3-8-1989. According to the police, accused Khem Singh associated other accused by saying that they would distribute the theft property amongst themselves. It is hardly possible to believe this kind of story, if we keep in view the fact that these articles were never distributed by the accused amongst themselves. They were not noticed by any one either while carrying away these articles or keeping them at the place from where they were ultimately found. The accused never intended to keep the articles at these places, since their object was to share these articles. Secondly, the accused could not have taken away many of the articles since the object of stealing was not for sale. Further, it is not believable that the accused would conceal them at the places in question. They are open and accessible. The prosecution case becomes all the more doubtful when we turn to the statement of Mehar Singh (PW 3) and Sakh Mohammad (DW 2). It has been stated by Mehar Singh (PW 3) that before the accused reached the place along with the police, some other police was already there. Similarly, Sakh Mohammad (DW 2) had denied the accused making any kind of disclosure statement. He has also said that the police was already at the spot and accused Khem Singh lifted the stone on the asking of the police. Evidence supporting the prosecution is given by Noor Mohammad (PW 6) and SHO Anand Kumar, but their version cannot be accepted in preference to the statement of Mehar Singh (PW 3) and Sakh Mohammad (DW 2). As a matter of fact, Sakh Mohammad (D W 2) is a left out witness of the prosecution and his version appears to be quite truthful and convincing like the one given by Mehar Singh (PW 3). The trial Court has not given any satisfactory reason for discarding their testimony.
25. No independent offence relating to theft of articles has been initiated against the accused. Why? It has not been explained, especially when the investigation was also directed towards the commission of theft relating to the stolen articles. This also means that these articles were not at all stolen from the house of the deceased by anyone and moreso by the accused. The recoveries are, therefore, planted and the object is to connect the accused with the crime. Recoveries of weapon of offence are likewise unsatisfactory. The accused could not have taken them away and kept at the places wherefrom they were ultimately recovered. We, therefore, proceed to discard the recoveries made in this case.
26. There are certain facts which deserved to be noticed here in order to appreciate the authenticity of the prosecution case. Mehar Singh (PW 3) was the first person to notice the cattle of the deceased damaging his maize crop. He did not make any attempt to apprise the owner about it. Normally, he should have called them and on their failing to respond, he should have gone to their house. He did not j do so. Instead, he goes to Member Panchayat Man Singh. Thereafter, Up-Pradhan Narotam is called from a distant village. It was only thereafter that they went to the house of the deceased and found the dead bodies there. Chattar Singh was asked to go to the police station at the same time, but he did not go on account rains and instead of informing others about his failure to go to the police, he goes to his house. Why was he sent alone when many people had gathered at the place and secondly, when Chattar Singh failed to go to the police station, why he did not inform others in the village, makes the prosecution case all the more doubtful. Then the police reaches the place of occurrence on 2-8-1989 at 9.15 p.m. as recorded in the case diary but an attempt has been made to show that it reached at 11 p.m. and did not visit the place of occurrence. It is not at all believable. As per the case diary, the police had reached at 9.15 p.m. on 2-8-1989, it searched the house of the deceased as stated by Mehar Singh (PW 3) and stayed in the village for the night. Janki was with him. She did not point out that articles had been stolen from the house. It was for the first time on 3-8-1989 that the story about this theft was set up.
27. It is also noticeable that the accused had not run away after committing the crime whether that of murders or of theft. They were available in the village all through during the police investigation, helping in the removal of the dead bodies; accused Dass had gone even to the hospital along with the dead-bodies. This kind of conduct on their part further demonstrates that they had nothing to do with the commission of the crime in question. Furthermore, the police did not arrest them on 3-8-1989 after it had come to know about the making of extra-judicial confession through Narotam. Why? Answer is simple. There was no extra-judicial confession till then nor it was stated by Narotam to the police. It appears to have come into the picture at some subsequentt stage since it does not find mention in the case diary maintained by the police. Non arrest of the accused by the police after coming to know of the names of the accused on the basis of the extra-judicial confession shows that the police investigation had not disclosed their participation in the crime. The explanation given by the SHO Anand Kumar is hardly acceptable.
28. True it is that three lives have been lost, but without legal evidence connecting the accused with the crime, it is not possible to record conviction. The circumstantial evidence is thoroughly of shaky, weak and of undependable nature. It does not answer the requirements laid down by the Apex Court in the decisions quoted above.
29. The result that emerges out of our examination of the matter, is that there is substance in this appeal and the same is allowed. The accused are acquitted of the charge. They are ordered to be set free forthwith.