Order
1. The appellants in both these appeals were convicted by the Sessions Court for the offences under Sections 302/34, 323/34 and 341/34 of the Penal Code, 1860. For the offence under Section 302 read with Section 34, life imprisonment with fine of Rs 25,000 (twenty-five thousand) on each of them was imposed and in default for payment of fine, they were directed to undergo imprisonment for a period of three years. For the other two offences, one year's simple imprisonment with fine of Rs 500 and one month's simple imprisonment with fine of Rs 500 was respectively imposed. All substantive sentences were ordered to be run concurrently. The appeals challenging the conviction and sentence passed by the Sessions Court were dismissed Criminal Appeal No. 625 of 2000 by the High Court and, therefore, these appeals have been filed on grant of leave.
2. The prosecution case in brief is that the appellants visited the house of deceased Om Singh at about 10.30/11.00 p.m on 1-5-1999. Om Singh went with them on a motorcycle. All the three had friendly relations. At 7.00 a.m on 2-5-1999 appellant Nathu Singh Rathore came to the house of Om Singh and informed his son Sher Singh (PW 1) that Om Singh had an accident and was lying at Khirni Phatak in Jhotwara locality of Jaipur. That place is near the house of appellant Madho Singh. Sher Singh accompanied by his neighbour Vikram Singh and appellant Nathu Singh left for the said place. On reaching there they learnt that Om Singh had been taken to Deep Hospital at Jaipur by appellant Madho Singh. They went to the said hospital. On reaching Deep Hospital it was learnt that since the condition of Om Singh was serious he had been referred to S.M.S Hospital and had been taken to that hospital. Thus, PW 1 went to S.M.S Hospital. For the first time a report was lodged by Sher Singh on 3-5-1999 that he had learnt from a blank telephone call that in fact his father had been given a beating in the house of Madho Singh and had been thrown out and that it was not a case of accident. Om Singh remained in the hospital till his death. He ultimately died on 6-5-1999 at 8.30 p.m After the death, the accused persons were arrested, charged, convicted and sentenced as noticed hereinbefore.
3. While in Deep Hospital no treatment seems to have been given to Om Singh. That is the statement of PW 11, Dr Lakhan Lal. Further statement of PW 11 is that the face of Om Singh was crushed. He deposed that no treatment was given to him and the hospital authorities asked Om Singh to be taken to S.M.S Hospital, although no slip of this reference was prepared. Further, it appears from the testimony of PW 15, Dr N.S Disaniya that Om Singh was examined by him on 4-5-1999, on PW 15 being called from the Neurosurgery Ward. On examination of Om Singh, the injuries which were found on his person were stated by the witness. There is no evidence on record whether any treatment at all was given to Om Singh prior to 4-5-1999. The post-mortem of the body of Om Singh was also conducted by PW 15. It is in his evidence that on examining the chest he found that the left ribs were fractured. The cause of death was stated to be coma as a result of head injuries. Further, the witness has deposed that the head injuries could also have been sustained in the accident.
4. PW 1 though in the report lodged on 3-5-1999, to the police, had stated that his father Om Singh was carrying Rs 3000 in cash and was wearing a H.M.T wristwatch which were missing from his person, however, later on 22-5-1999 Sher Singh gave a report to the police that the cash and watch had been found from the house and had not been stolen from the deceased and, therefore, that aspect may be deleted from the first information report.
5. The primary, if not the solitary basis of the conviction of the appellants is on the theory of last seen as the deceased left his house with the appellants at about 11.00 p.m on 1-5-1999. In order to convict the appellants for an offence under Section 302 the first and foremost aspect to be proved by the prosecution is the homicidal death. The evidence on record produced by the prosecution falls short of the proof of homicidal death of Om Singh. According to PW 11 Dr Lakhan Lal, his face had been crushed. According to the testimony of PW 15 Dr Disaniya, the injuries received by the deceased could be sustained in the accident. Besides these two witnesses, there is no evidence to prove that it was a case of homicidal death.
6. The prosecution came out with a specific case that Om Singh was given a beating in the house of Madho Singh and thereafter thrown out. Though bloodstained soil outside the house of Madho Singh was recovered, but it was not proved. PW 4 Rajinder Singh and PW 5 Prem Singh were examined to prove the prosecution case. They turned hostile and did not support the prosecution. The prosecution failed to prove that the place of occurrence was the house of Madho Singh. It is not permissible for the prosecution then to shift and take a stand that it was not the house of Madho Singh; the deceased may have been given a beating at a different place. In fact no place of occurrence has been proved by the prosecution.
7. Although the information about the accident is alleged to have been given at 7.00 a.m on 2-5-1999 and on the same date PW 1 reached S.M.S Hospital, the report that was lodged was only on 3-5-1999. The reason given in the report that on a blank telephone call having been received, Sher Singh had learnt, that it was not a case of accident, had been disbelieved by the courts below. Further, clothes of the deceased are said to have been taken from his younger brother Pappu Singh on 5-5-1999. Even that fact has not been proved. Pappu Singh has not been examined. In any case those clothes of the deceased would be hardly any evidence to connect the appellants with the alleged murder of the deceased by them.
8. In the absence of proof of homicidal death, the appellants cannot be convicted merely on the theory of last seen — they having gone with the deceased in the manner noticed hereinbefore. The appellants' conviction cannot be maintained merely on suspicion, however strong it may be, or on their conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that all the three were good friends for over a decade.
9. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment Criminal Appeal No. 625 of 2000 and sentence. Therefore, setting aside the impugned judgment Criminal Appeal No. 625 of 2000 of the High Court affirming that of the Sessions Court, we allow these appeals and acquit the appellants giving them benefit of doubt. The appellants shall be set free forthwith if not required in any other case.