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Judgment
Per: Justice Alok Awasthi
1] Appellants have preferred this criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 being disgruntled by the judgment dated 02.01.2002, passed by learned Additional Sessions Judge, District Ujjain, in Sessions Trial No.234/2001 whereby the appellants have been convicted for the offence punishable under Sections 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- each and default stipulations.
2] In brief, the facts giving rise to the present appeal are that, on 13.05.2001, one Omprakash S/o Bherusingh Patidar, R/o Tobrikheda lodged a report stating that when he was in his field, at about 08:00 am, he listened some noise from the well of Anandilal Patidar, thereafter, he went towards the well and saw that Kalu Chamar, Mohan, Bansi Chamar were running towards Tobrikheda and Prabhu Chamar was running towards Tarana. As Omprakash reached to the well of Anandilal, he saw that Purushottam S/o Mangilal Patidar R/o Chhadawad lying injured. He asked Purushottam about the incident, on which, Prabhulal told him that he came to collect borrowed money from Prabhu Chamar and on demanding money, Prabhu Chamar scuffled with him. During this course, Mohan, Kalu and Bansilal Chamar came thereafter, it is alleged that Bansi and Mohan caught hold him and Prabhu and Kalu started to assault him by means of sticks with common intention to kill. Deceased started bleeding and when he shouted, the accused fled away. Thereafter, some villagers came and Purushottam was taken to the hospital. Meanwhile, complainant Omprakash lodged a report bearing Crime No. 111 dated 13.05.2001 at Police Station Tarana, District Ujjain (Exhibit-P/16). Looking to the condition of injured Purushottam, he was referred to District Hospital, Ujjain, where, during treatment, he died. After the death of deceased, a Merg was registered (Exhibit-P/19C). Thereafter, an FIR was registered at Crime No. 111/2001 for the offence punishable under Section 302/34 of IPC. Thereafter, police started investigating the matter.
3] During investigation, spot map was prepared, statement of the witnesses were recorded. Accused persons were arrested, articles were seized and medical documents were prepared. The statements of the accused persons were recorded.
4] After completion of investigation, charge-sheet was filed before Judicial Magistrate First Class, Tarana, District Ujjain. On due consideration offence under Section 302 was added against the appellants. Thereafter, the matter was committed to Court of Sessions Judge.
5] The learned trial Court framed the charges under Section 302/34 of IPC, 1860 against the appellants. The appellants abjured their guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 02.01.2002 and finally concluded the case by convicting the appellants for commission of the offence under the provisions of Section 302/34.
6] The prosecution on its behalf has examined as many as 11 witnesses viz. Ramchandra, brother of the deceased (PW-), Vishnuprasad Patidar, nephew of the deceased (PW-2), Sukhdev Patidar, Son of the deceased (PW-3), Dr. Abbas Ali, Assistant Surgeon (PW-4), Basant Kumar (PW-5), Omprakash (PW-6), Dr. Prahlad Bhargava, Assistant Surgeon (PW-7), Ramlal, Head Constable (PW-8), Mahendra Kumar, Head Constable (PW-9), Ramsingh, Head Constable (PW-10) & Devindar Singh Rana, Inspector (PW-11). No witness has been adduced in defence by the appellants.
7] Shri Vivek Singh, learned Senior Advocate assisted by Shri Shivendra Singh Rawat, Advocate for the appellants has argued at length before this Court mainly on the ground that the appellants have falsely been implicated in the case, as the prosecution has not able to prove its case beyond reasonable doubt. He submitted that the allegation against the appellants Bansilal and Mohanlal is that they caught hold the deceased and against Prabhu and Kalu is of causing injury by means of stick with common intention to kill him. The conviction of appellants has been made on the basis of oral dying declaration of deceased and all witnesses are relative or interested witness, hence, there are several contradictions in the evidence of Ramchandra, brother of deceased (PW-1), Vishnuprasad Patidar, nephew of deceased (PW-2), Sukhdev Patidar, Son of deceased (PW-3).
8] It is pointed out that though the prosecution has relied upon oral dying declaration but as per deposition of the witness i.e. Omprakash (PW-6), the deceased did not inform him about the incident and neither he heard any noise when he was in his field nor he saw anyone running away from spot where incident occurred. Further, Omprakash (PW-6) has been declared hostile.
9] In order to support his arguments, learned Senior Counsel has placed reliance on the statements given by Vishnuprasad Patiwar (PW-2) and Sukhdev Patidar (PW-3). On the basis of their statements, he categorically argued that it is clearly established that there was certain money transaction between the deceased and appellants. The prosecution has also failed to produce any evidence reflecting the last seen of the appellants with the deceased. It is also contended that the prosecution case has not been supported by the independent witnesses. On the aforesaid grounds, the findings of the learned trial Court regarding conviction of appellants is liable to be set aside and appeal filed by the appellants deserves to be allowed.
10] Per contra, learned counsel for the respondent / State opposes the prayer by supporting the impugned judgment passed by the trial Court and prays for its dismissal by submitting that the trial Court after appreciating the entire evidence in detail, has convicted the appellants. The trial Court has not committed any error in holding that the appellants are guilty for the offence under Section 302/34 of IPC. Hence, no interference in the impugned judgment is warranted and present appeal is liable to be dismissed.
11] In support of his contention, learned counsel has taken the prop of the judgment delivered by the Apex Court in the case of Prakash and Another Vs. State of Madhya Pradesh reported in (1992) 4 SCC 225 .
12] Heard learned counsel for the parties at length and perused the record.
13] In the backdrop of rival submissions, the question for determination of deciding this appeal is as to whether the findings of learned trial Court regarding conviction and punishment of the appellants under Section 302/34 of IPC is incorrect in the eyes of law and facts or not ?
14] At the outset, the statement of Dr. Abbas Ali (P.W.-4) is worth referring. Dr. Abbas Ali deposed that on the date of the incident, he found following injuries on the person of deceased Purushottam :-
1.A lacerated wound measuring 3/4 x 1/4 inch on the right knee with blood clotting.
2.A bruise measuring 1/4 x 1/4 inch on the back of the left elbow with blood clotted on it.
3.A bruise measuring 1/2 x 1/4 inch on the back of the left wrist.
4.A bruise measuring 1/2 x 1/2 inch on the inside of the left forearm with blood clotted on it.
5.A lacerated wound measuring 1/2 x 1/4 inch deep, down to the skin.
6.A torned wound measuring 1/2 x1/6 x 1/6 inch on the nose, slightly below the bridge.
7.A bruise measuring 3/4 x 3/4 inch on the left side of the forehead, two and a half inches above the left eyebrow.
8.A lacerated wound measuring 3/4 x 1/4 x 1/4 inch on the left side of the forehead, two inches from the left eyebrow.
9.The eyebrow which was on the right side of the neck and the right range of the Mandibular Val was one and a half inch below.
10.A bruise measuring 3/4 x 3/4 inch on the right shoulder with clotted blood.
11.A bruise 1/2 x 1/2 inch on the right shoulder.
15] Further, Dr. Prahlad Bhargava has conducted postmortem of deceased and opined that "In my opinion mode of death is coma due to fracture of case of skull and intracerebral hemorrhage, duration within 12 hours." The statement of this witness, has not been rebutted in his cross-examination. It has not been clarified through by doctor whether any person would have in fit stage to speak following the said injuries. It is remarkable that as per Court statement of Omprakash (PW-6), he found the deceased in unconscious stage. So the version with regard to the oral dying declaration made by the deceased in front of Ramchandra (PW-1), Vishnuprasad Patidar (PW-2) and Sukhdev Patidar (PW-3) is not reliable as they were not present on the spot.
16] In the FIR lodged by Omprakash (PW-6), there is a whisper about the oral dying declaration but he has not confirmed the oral dying declaration in his Court statement. After a careful scrutiny of the testimony of Omprakash (PW-6) with whom oral dying declaration is said to be made by the deceased and the FIR carries inherent contradictions and improbabilities which strike at the very root of the prosecution case. He deposed that when he reached at the place of incident, he found the deceased lying in unconscious condition. Significantly, before reaching the injured, he stated that he saw accused Kalu Chamar, Mohan and Bansi Chamar running towards Tobrikheda, while Prabhu Chamar was running towards Tarana. He saw them from a distance of about 2000–3000 feet from back side. It is impossible to believe that a person can identify the persons from back side in the early morning, who are running at a distance of about 2000-3000 feet. Such a considerable distance completely compels that the testimony of Omprakash (PW-6) is improbable in respect of appellants No. 2 Bansilal and No. 4 Mohanlal. His Court statement is relevant regarding appellant No. 1 Prabhulal as the witness had seen him riding away with the deceased just a short by earlier.
17] Here, a question also arises as to whether the deceased was physically and mentally capable of making dying declaration. In this regard, no cogent evidence is available on record, much less any medical evidence, establishing that the deceased was conscious and in a fit state of mind to make such statement. In the absence of any evidence, the oral dying declaration made by deceased to Omprakash (PW-6) loses all evidentiary sanctity. That apart, oral dying declaration suffers from another fundamental infirmity which can also be proved from the statement of Omprakash (PW-6), wherein he has admitted that first he noticed the accused persons running away and only thereafter approached the deceased. This sequence of events itself creates a serious doubt as to whether any meaningful conversation with the deceased was at all possible. The conduct attributed to the witness Omprakash (PW-6) does not inspire confidence and fails to satisfy the test of natural human behaviour. His testimony is therefore wholly insufficient to establish that the deceased was in a condition to narrate the names of accused and their roles.
18] It is a settled principle of criminal jurisprudence that an oral dying declaration is an inherently weak species of evidence and must be subjected to the strictest judicial scrutiny. Before acting upon such evidence, the Court must be fully satisfied that the deceased was in a conscious and fit condition to make the statement, that the witness faithfully reproduced the exact words of the deceased and the declaration inspires complete confidence and is free from every reasonable suspicion. Where these indispensable safeguards are absent, it would be wholly unsafe to base a conviction upon such evidence.
19] To determine the issue of believing on oral dying declaration made by the deceased to Omprakash (PW-6), the law laid down by the Apex Court in the case of Prakash and Another Vs. State of Madhya Pradesh reported in (1992) 4 SCC 225 , is condign to quote here :-
"In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants."
20] Likewise, in the same context, the observation made by the Apex Court in the case of Arun Bhanudas Pawar Vs. State of Maharashtra reported in (2008) 11 SCC 232 , is worth to refer here :-
"..........P.W.-Sunderbai is an interested witness and her testimony without corroboration from independent witness including the medical officer cannot be blindly accepted to prove that deceased Raju had regained consciousness when she met him in the hospital and named the appellant - Arun to be an assailant along with his two other associates who inflicted knife injuries on the body of the deceased."
"....... It is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.........."
".....The evidence of alleged oral dying declaration by the deceased Raju to his mother P.W.-Sunderbai relied upon by the prosecution and accepted by the trial court and the High Court, in our view, was not cogent, satisfactory and convincing to hold that deceased Raju before his death was in a fit condition to make oral declaration to his mother."
21] In the instant case, As per FIR (Exhibit-P/16), wherein it has been reported that there was no other witness with whom oral dying declaration was made except Omprakash (PW-6), but as per statement of Omprakash (PW-6), not only the prosecution fails to satisfy these settled legal parameters but also creates serious doubt regarding possibility of oral dying declaration. Consequently, the oral dying declaration made by the deceased cannot be treated as credible or reliable evidence and deserves to be discarded. Once the alleged oral dying declaration is excluded from consideration, the entire edifice of the prosecution case against the appellants Bansilal and Mohanlal except accused Prabhulal stands materially weakened and they are entitled to get the benefit of doubt. It is remarkable that as per prosecution case and available prosecution evidence Ramchandra (PW-1), Vishnuprasad Patidar (PW-2) and Sukhdev Patidar (PW-3), Omprakash (PW-6), the deceased had set out to recover the outstanding amount from the accused Prabhulal, he made him sit on his motorcycle and took him to another location in front of Omprakash (PW-6).
22] So far as the credibility of the testimony of Omprakash (PW-6) with regard to the identification of the accused is concerned, in his deposition, he has admitted that he saw the accused persons Kalu, Mohan and Bansi from back side running towards Tobrikheda, whereas accused Prabhulal was running towards Tarana. He also deposed that he had seen them from a distance of about 2000–3000 feet. The same creates many doubt in mind to reach the conclusion of identification. First, identification of persons running from such an extraordinary distance is quite impossible. Second, the witness has not disclosed any circumstance enabling him to unmistakably identify each of the accused from such a considerable distance. Thirdly, the conduct attributed to the accused, namely, three accused running in one direction while the fourth accused was simultaneously running in another direction, further renders the prosecution version doubtful and unnatural. The Court ultimately held that the testimony of Omprakash (PW-6) did not constitute reliable evidence against accused Bansilal and Mohanlal in the absence of any other corroborative evidence, extended them the benefit of doubt.
23] So far as the argument of counsel for the appellants with respect to the findings that the witnesses viz. Ramchandra (PW-1), Vishnuprasad Patidar (PW-2), Sukhdev Patidar (PW-3) & Omprakash (PW-6) are related and interested witnesses, thus on the basis of his testimonies, the appellant cannot be convicted is concerned, the same is not in dispute. On this aspect, it is apposite to take the prop of the judgment of “Dilip Singh vs. State of Punjab” reported as AIR 1953 SC 364, wherein the full Bench of Hon’ble Supreme Court in para 26 held as under:
“26.……… Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”
24] Further in the case of Masalti vs. State of Uttar Pradesh reported in [AIR 1965 SC 202], the Apex Court in para 14 has held as under:
“14.………. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.”
25] As such, the argument regarding interested witnesses also appears to be feeble. So far as the relatedness and interest is concerned, in a recent decision rendered by Hon'ble Apex Court in the case of Laltu Ghosh vs. State of West Bangal, AIR 2019 SC 1058 is relevant to be referred here:
"This Court has elucidated the difference between ‘interested’ and ‘related’ witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused".
26] As per the human tendency, a close relative would put forth the actual story of incident rather than hide the actual culprit and foist an innocent person. Virtually, in many of the criminal cases, it is often seen that the offence is witnessed by close relatives of the victim, whose presence on the spot of incident would be natural and the evidence of such witness cannot automatically be discarded by leveling them as interested witness. But in the present case, as per FIR (Exhibit-P/16), except Omprakash (PW-6), no other witness was present on the spot with whom dying declaration was made by the deceased. As per Court statement of Ramchandra (PW-1), Vishnuprasad (PW-2) and Sukhdev Patidar (PW-3) attempts were made to portray several individuals as witnesses to the dying declaration. However, their names were not mentioned in the First Information Report, their names are not reliable as the witnesses to the dying declaration. Furthermore, the credibility of their statements do not match with the fact that Omprakash (PW-6) himself placed the deceased in his Jeep and took him to the hospital by driving himself and as per his Court statement, he found the deceased in unconscious condition.
27] Now turning to the criminal act and liability of another appellants No. 2 Bansilal and No. 4, Mohanlal, here the question arises as to whether appellants No. 2 Bansilal and No. 4. Mohanlal are liable to be convicted for the offence punishable under Section 302/34 of IPC. It can be decided only by ascertaining the statement of witnesses examined by the trial Court. In the statement of Omprakash (PW-6), he stated that before the incident, the deceased took the appellant No. 1 Prabhulal on his motorcycle near the well of Anandilal to recover his money and after 10 minutes, he saw the deceased lying injured. He also stated he saw the appellants No. 2 Bansilal and 4. Mohanlal running from behind at a distance of 2000-3000 feet away. Now the question is as to whether it is sufficient to believe the statement of Omprakash (PW-6) ? If the witness Omprakash (PW-6) is treated as last seen witness, the appellants No. 2 Bansilal and 4. Mohanlal should have an intention to cause death. Certainly, Omprakash (PW-6) has seen the deceased with appellant No. 1 Prabhulal, when deceased came to the appellant No. 1 Prabhulal for recovery of his money. That apart, as per seizure witness, Devinder Singh Rana, Inspector (PW-11) and Basant Kumar (PW-5), a stick has been seized from the appellant No. 3 Kalu and as per FSL Report (Exhibit-P/24) of the same, human blood was found, which clearly established the involvement of the appellant No. 3 Kalu in crime. Hence, it can be ascertained that the appellant No. 1 Prabhulal and No. 3 Kalu had played specific role in the crime of death of the deceased.
28] Further, strengthening it by connecting with the question of motive of the accused is concerned, as per statements of Ramchandra, brother of deceased (PW-1), Vishnuprasad Patidar, nephew of deceased (PW-2), Sukhdev Patidar, Son of deceased (PW-3) , all have supported the prosecution case by stating that appellant No. 1 Prabhulal borrowed money from the deceased. The statements of these witnesses have not been controverted in their cross-examination. But as per FSL Report (Exhibit-P/25), human blood was found on the stick which was seized from the house of appellant No. 3 Kalu and mogri was seized from the appellant No. 1 Prabhulal. Hence, the charge of offence for causing hurt voluntarily to the deceased is well proved against the appellant No. 1 Prabhulal and No. 3 Kalu. As such accused deserves to be convicted under Section 302 of I.P.C.
29] In order to justify the conviction under Section 302 of IPC, the Court has to examine the nature of the article used and the manner in which it is used. In addition to that severity as well as a number of the blows and the part of the body where the injuries are inflicted, are also to be taken into account to determine the nature of the offence. The role of motive is also ought to be taken into consideration.
30] Further, in view of the reports and the nature of offence committed by appellants No. 2 Bansilal and No. 4. Mohanlal, it cannot be established that these appellants have intention to murder or knowledge as to the fact that the injured would be killed by said injury. Therefore, a benefit of doubt can be granted to these appellants.
31] At this junction, the dictum of the Apex Court in Jitendra Kumar Mishra @ Jittu Vs. State of Madhya Pradesh reported in (2024) 2 SCC 666 , is worth to quote here and the same reads thus :-
"...........There is no specific material piece of evidence to establish that the deceased was alive or in a position to speak when his brother & mother reached the spot. In these circumstances, the dying declaration cannot be ex facie accepted to be correct unless it stands corroborated by any other cogent evidence. There is no material to corroborate the said dying declaration.
17.We are conscious of the fact that the appellate court should be slow in interfering with the conviction recorded by the courts below but where the evidence on record indicates the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and that a plausible view, different from the one expressed by the courts below can be taken, the appellate court should not shy away in giving the benefit of doubt to the accused persons."
32] On this aspect, the observation made by the Apex Court in the case o f Kannaiya Vs. the State of Madhya Pradesh, 2025 INSC 1246 , is reproduced as under :-
"58.In this regard, reference may be made to the decision of this Court in Pankaj v. State of Rajasthan9, wherein it was emphasised that when the genesis and manner of the incident itself are doubtful, conviction cannot be sustained. The Court held as under: -
“25.It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt.” (Emphasis Supplied)
33] On conspectus of the aforesaid settled proposition of law and factual matrix of the case, nothing is available on record which adverts such intention or knowledge by which the offence of attempt to murder can be drawn. Thus, the ingredients of Section 302 of IPC are missing in the present case with regard to the appellant No. 2. Bansilal & No. 4. Mohanlal. Since the entire case of the prosecution has fallen, appellant No. 2. Bansilal & No.
Mohanlal are entitled to be extended the benefit of doubt.
34] Now, coming to the another limb of the case with regard to the nature of the offence attributable to appellant No. 1, Prabhulal and No. 3 Kalu, it is evident from the material available on record that the prosecution has succeeded in establishing circumstances which unequivocally point towards his culpability. The testimony of Omprakash (PW-6) is significance in this regard, in which he has categorically deposed that he saw the deceased with appellant No. 1 Prabhulal going towards Anandilal's well by a motorcycle. This circumstance not only establishes the presence of appellant No. 1 with the deceased immediately prior to the incident but also lends support to the prosecution case regarding the motive and the chain of incriminating circumstances. It is in the human nature that when Omprakash (PW-6) noticed appellant No. 1 Prabhulal with the deceased, he would also have observed his physical appearance, including the clothes worn at that time, thereby reinforcing the reliability of his identification.
35] So far as the testimonies of other witnesses namely Ramchandra (PW-1), Vishnuprasad Patidar (PW-2) and Sukhdev Patidar (PW-3), Omprakash (PW-6) regarding circumstantial evidence is concerned, all the witnesses have stated that the appellant No. 1 Prabhulal took money from the deceased and to recover the same, the deceased went to the appellant No. 1 Pabhulal. As per their statements, it is found that the deceased told his son Sukhdev (PW-3) that he was going to Tobrikheda for recovery of the money from appellant No. 1 Prabhulal and it can be said that due to said recovery of borrowed money, the appellant No. 1 Prabhulal assaulted the deceased with stick (lathi) and on the same stick, as per FSL Report, human blood stain was found. Omprakash (PW-6) saw the appellant No. 1 Prabhulal towards Tobrikheda Tarana just after the incident. It is relevant in reference of Section 8 of the Evidence Act, 1872. It is relevant with the behaviour of the appellant after committing offence.
36] That apart, as it is also evident from the seizure memo (Exhibit P/5), a stick (lathi/mogri) was recovered from the appellant No. 1 Prabhulal and as per seizure memo (Exhibit-P/15), a stick (lathi) was recovered from the house of appellant No. 3 Kalu. The seizure witness, Devinder Singh Rana, Inspector (PW-11) and Basant Kumar (PW-5) has fully supported the prosecution case and has categorically proved the recovery of the said weapon. The same was sent for forensic examination, and as per FSL Report (Exhibit P/25), article 'C' & 'D' -a stick (lathi), was found to have blood stains. This scientific evidence lends substantial corroboration to the prosecution case and constitutes a vital incriminating circumstance connecting the appellant No. 1 Prabhulal and No. 3 Kalu with the commission of the offence.
37] Thus, the cumulative effect of the testimony of Omprakash (PW-6), the proved motive, the recovery of blood-stained sticks from appellants No. 1 Prabhulal and No. 3 Kalu, the unassailable testimony of the seizure witness, Devinder Singh Rana, Inspector (PW-11) and FSL Report confirming the presence of human blood on the seized sticks form a complete and unbroken chain of circumstances, which unerringly points towards the guilt of appellant No. 1 Prabhulal and No. 3 Kalu. The prosecution has successfully proved his involvement by the recovery of the blood stained stick from his possession, the testimony of the seizure witness supporting such recovery, and the FSL Report confirming the presence of human blood on the seized weapon, which furnish complete corroboration to the prosecution case. These circumstances are wholly incompatible with the innocence of appellants No. 1 Prabhulal and No. 3 Kalu and exclude every reasonable hypothesis except their guilt. Consequently, appellant No. 1 Prabhulal and No. 3 Kalu, are liable to be convicted for the offence punishable under Section 302 of IPC.
38] In the case at hand, given that there is no definitive evidence of last seen in respect of the appellants No. 2 Bansilal and 4. Mohanlal as also the fact that there is no time-gap between the alleged last seen and reaching to the deceased, and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete. The only inference that could be drawn is the guilt of the appellant No. 1 Prabhulal and No. 3 Kalu. In a case of circumstantial evidence, the chain has to be completed in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. It would be unsafe to sustain the conviction of the appellants No. 2 Bansilal and 4. Mohanlal on such evidence, where the chain is clearly incomplete. That apart, the presumption of innocence is in favour of the accused and when doubts emanate, the benefit accrues to the appellants No. 2 Bansilal and 4. Mohanlal, and not to the prosecution.
39] In conspectus of aforsaid propositions of law and mitigating circumstances of the case, this appeal is partly allowed. The finding of the learned trial Court qua conviction and sentence of the appellant No. 1 Prabhulal and No. 3 Kalu under Section 302 of IPC is found unsustainable and hereby affirmed. They are directed to surrender before the trial Court within a period of 15 days from the date of pronouncement of this judgment for completing the remaining part of sentence. In case, they fail to surrender, the learned trial Court shall take all steps to commit them to jail for undergoing remaining part of sentence.
40] The appellants No. 2 Bansilal and 4. Mohanlal are acquitted from the charges under Section 302/34 of IPC. The appellants are on bail. Their bail bonds stand discharged.
41] Ex-consequnti, present Criminal Appeal stands allowed in part.
42] The judgment regarding disposal of the seized property stands confirmed.
43] Record of the trial Court be sent back alongwith a copy of this judgment.
Pending application, if any, stands closed.