Net Ram vs The State (Delhi Admn.)
2010 Latest Caselaw 3037 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Judgment reserved on: May 06, 2010
                                    Judgment delivered on: July 02, 2010

+       CRIMINAL APPEAL NO. 239/97
        NET RAM                                ....APPELLANT
                Through: Mr. D.C.Mathur, Sr. Advocate with
                         Mr. Mohit Mathur, Advocate

                     Versus
        THE STATE (DELHI ADMN.)             ....RESPONDENT
                Through: Mr. Pawan Sharma, Standing Counsel

                                         WITH

        CRIMINAL APPEAL NO. 246/97
        BAJRANG                                ....APPELLANT
                Through: Mr. D.C.Mathur, Sr. Advocate with
                         Mr. Mohit Mathur, Advocate

                     Versus
        THE STATE (DELHI ADMN.)             ....RESPONDENT
                Through: Mr. Pawan Sharma, Standing Counsel

                                          AND

        CRIMINAL APPEAL NO. 247/97
        MALTI DEVI                             ....APPELLANT
                Through: Mr. D.C.Mathur, Sr. Advocate with
                         Mr. Mohit Mathur, Advocate

                                Versus

        THE STATE (DELHI ADMN.)             ....RESPONDENT
                Through: Mr. Pawan Sharma, Standing Counsel

         CORAM:
         HON'BLE MR. JUSTICE A.K. SIKRI
         HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.      Whether Reporters of local papers
        may be allowed to see the judgment?                           Yes

2.      To be referred to the Reporter or not ?                       Yes


Crl.A.Nos.239/97, 246/97 & 247/97                                 Page 1 of 20
 3.      Whether the judgment should be
        reported in Digest ?                                                  Yes

AJIT BHARIHOKE, J.

1. Above referred appeals are directed against the impugned

judgment dated 19.05.1997 in Sessions Case No. 120/95, FIR No.

434/95 P.S. Saraswati Vihar in terms of which the appellants

Bajrang, Malti Devi and Net Ram have been convicted on the

charges under Sections 498A read with Section 34 IPC and Section

302 IPC read with Section 34 IPC and the consequent order on

sentence dated 21.05.1997.

2. Appellant Net Ram in Criminal Appeal No. 239/97 passed away

during the pendency of the appeal on 30.01.2008. However, his

family members, namely his widow Malti Devi and son Bajrang

insisted that his (Net Ram) appeal be decided on merits.

3. Briefly stated, case of the prosecution is that Bimla

(hereinafter referred to as „deceased‟) was married to the appellant

Bajrang on 19th February, 1995. Appellants Malti Devi and Net Ram

are her mother-in-law and father-in-law. On 07th July, 1995 at about

10:10 am, deceased was brought to Jaipur Golden Hospital by the

appellant Malti Devi with the "alleged history of having become

unwell after consuming tablet „Anacin‟". She was examined by Dr.

Vishal Bhatia (PW20) vide MLC Ex.PW20/A. Her pulse was not

palpable, B.P. not recordable, no breath sound was audible and

pupils were dilated and fixed. Dr. Vishal Bhatia tried to revive her

but his efforts yielded no result and she was declared brought dead.

4. On 08th July, 1995, PW24 Sh. Virender Kumar, SDM, Punjabi

Bagh conducted inquest proceedings. He recorded the statement

Ex.PW4/A of Sh. Sadhu Ram, father of the deceased, who in his

statement refused to believe that his daughter could die after taking

„Anacine‟. He however stated that there was no question of any

dowry demand or torture of the deceased and that he was not aware

of any dowry demand made by the in-laws of the deceased. He

requested the SDM to make thorough inquiry into the circumstances

of death.

5. SDM Sh. Virender Kumar filled-up inquest form, which is

Ex.PW24/B. In Column No. 10 of the form, he described the injuries

i.e. "cut marks on dorsum of left hand and a dark brown patch with

contusion like appearance on right thigh back".

6. On 10th July, 1995, Dr. L. T. Ramani (PW25) conducted post-

mortem examination of the dead body and prepared his report

Ex.PW25/A. He found following injuries on the body of the

deceased:

1. Multiple tiny abrasions, some of them linear crescentic like finger nales abrasions on the back of left hand.

2. Two similar lenier crescentic abrasions on the left thenar eminance.

3. Two tiny abrasions of 0.2 c.m. x 0.2 c.m. on the middle of left palm.

4. One recent burn mark triangular in shape with base of the triangular area close to gluteal fold and apex downwards, present on the back of right thigh on its upper part size of the injury was 20 c.m. vertical and 11 c.m. wide at the base. The cuticle was peeled off at lower end. The interior margin showed redish line? Vital reaction. The central part of this burnt area was hard and cutical pealed off on soft touch.

5. Faintly visible redish mark with peeling off the cutical at one point, on the lateral surface of right leg. There was no evidence of vital reaction around the injury. There was no evidence skin rash anywhere on the body.

7. On 10th July, 1995, PW2 Mamta Devi, sister-in-law of the

deceased visited P.S. Saraswati Vihar in the evening and lodged

report Ex.PW2/A. In the report, she stated that an amount of nearly

four lakhs were spent on the marriage of Bimla (deceased). After

the marriage, when Bimla visited her father‟s house, she told Mamta

(PW2) that her husband and in-laws taunted her for not bringing a

Maruti Car in dowry though it was promised. PW2 advised her to

keep her in-laws in good humour by her behaviour and explained

that it was not possible to arrange for a Maruti Car at that stage.

Thereafter, the deceased visited her parents‟ home on two or three

occasions and on each visit, she was given costly gifts. The

deceased last visited her parental home about 20 days before her

death and complained of harassment at the hands of her in-laws.

She told that her husband and in-laws had asked her not to return

without a Maruti Car. PW2 Mamta consoled her and advised her not

to say anything to the others as her mother was not maintaining

good health. When the appellant Bajrang came to take the

deceased along with him, he was assured that a Maruti Car would be

arranged within two to four months. In this backdrop, PW2 Mamta

suspected that the appellants had committed murder of Bimla.

8. On the basis of the report Ex.PW2/A, formal FIR was registered

and appellants were arrested. On 16th July, 1995, dowry articles

detailed in list Ex.PW1/A were recovered and returned to the parents

of the deceased. On completion of investigation, the appellants

were sent for trial.

9. The appellants were charged by learned Additional Sessions

Judge for the offence punishable under Section 302 IPC read with

Section 34 IPC and in the alternative, for the offence punishable

under Section 304B IPC read with Section 34 IPC. They were also

charged for the offence under Section 498A IPC read with Section 34

IPC. The appellants pleaded not guilty to the charges and claimed

to be tried.

10. In order to bring home the guilt of the appellants, prosecution

has examined 26 witnesses. Learned Additional Sessions Judge in

the impugned judgment has observed that out of them PW8 Dr.

Ashok Ansari, PW9 Naresh Kumar, PW10 Jagdish, PW11 Ramesh

Bhardwaj, PW12 Kailash Devi, PW13 Dr. Mahinder Singh, PW14 Vijay

Sharma, PW18 Prahalad Singh and PW19 Nirmal Kaur tend to defeat

the case of prosecution. Learned Additional Sessions Judge did not

find their testimony reliable. PW2 Mamta Devi, PW3 Lakhi Ram,

PW4 Sadhu Ram, PW6 Kasturi Devi and PW7 Mohan Lal, relations of

the deceased on the paternal side have supported the case of

prosecution. They have deposed regarding the marriage and

harassment caused to the deceased.

11. PW2 Mamta Devi is the maker of the FIR. She lodged the

report Ex.PW2/A. In her testimony in the court, she has reiterated

the facts stated in the report Ex.PW2/A.

12. PW3 Lakhi Ram is the brother of the deceased and husband of

PW2 Mamta Devi. He has testified that his wife Mamta had told him

about the demand of Maruti Car made by the appellants. He

claimed that on 07th July, 1995 at about 11:00 am, he received a

telephone call from the appellant Bajrang Kumar that his sister

Bimla (deceased) was ill. On receiving the message, he came to

Delhi along with his mother and younger brother Sanjay. When he

found that his sister Bimla had died, he left for Nepal to bring his

wife because she was conversant with all the facts.

13. PW4 Sadhu Ram is the father of the deceased. He testified

that on 08th July, 1995, he joined the inquest proceedings and the

SDM recorded his statement Ex.PW4/A wherein he requested the

SDM to make thorough inquiry into the circumstances of the death.

PW6 Kasturi Devi is the mother of the deceased and she stated that

her daughter was married to the appellant Bajrang on 19th February,

1995. She categorically stated that no demand for dowry was made

and nothing happened in her presence.

14. PW7 Mohan Lal is another brother of the deceased. He

claimed in his testimony that he had seen injury mark of electric iron

on the back of thigh of the deceased besides some scratches on her

body in mortuary.

15. PW24 Sh. Virender Kumar is the then SDM of Punjabi Bagh,

who conducted inquest proceedings on 08th July, 1995. He has

proved the inquest form filled-up by him Ex.PW24/B. He stated that

he observed cut marks on the dorsum of left hand and dark brown

patch with contusion like appearance on the right thigh (back) of the

deceased. He claimed that the said brown patch was triangular in

shape.

16. PW25 Dr. L.T.Ramani conducted post-mortem examination on

10th July, 1995. He proved his report Ex.PW25/A. According to him,

the death had occurred three days earlier due to cardio-respiratory

failure consequent to electrocution. He claimed that he confirmed

his opinion regarding cause of death after taking into account CFSL

report on 23rd February, 1995.

17. PW26 Inspector Manohar Singh is the Investigating Officer. He

seized the electric press Ex.P1 on 1st September, 1995. He however,

admitted in his cross-examination that he did not check if the

electric press was leaking. He stated that Section 302 IPC was

added after the receipt of the post-mortem examination report.

18. The appellants when examined under Section 313 Cr.P.C.

denied that anyone of them ever made a demand of Maruti Car as

alleged by the prosecution. They also challenged the authenticity of

the post-mortem report. They claimed that the case has been

fabricated against them in collusion with Dr. L.T.Ramani (PW25).

19. The appellant Net Ram took a plea of alibi. He examined DW1

Hari Pal from Wazirabad Depot, DTC to show that on 07 th July, 1995,

he joined duty at 05:00 am and left his duty at 10:50 am after

submitting an application for short leave. Photocopy of the

application is Ex.DW1/A. As per the application, Net Ram had

applied for short leave on the ground that he had suddenly

developed chest pain.

20. On perusal of the impugned judgment, it transpires that the

learned Additional Sessions Judge has found the appellants guilty of

offence under Section 498A/34 IPC on the basis of testimony of PW2

and PW3 and also found them guilty under Section 302 IPC read with

Section 34 IPC on the strength of following incriminating

circumstances:

"(i) The death of Bimla was a result of violence and the accused have not offered any explanation for the injury found on the back of her right thigh.

(ii) The death occurred in the late hours of night and the accused made attempt to mislead the court about the actual time of death.

(iii) Net Ram must have been present at home when Bimla died and he went thereafter to join duty.

(iv) The accused remained silent about the death of Bimla for about five hours and it was only at 9.00 a.m. that she was brought down stairs.

(v) The accused circulated a false story that Bimla had become unwell after taking anacin tablet.

(vi) The accused created false evidence to show that Bimla was alive at 9.00 a.m".

21. Learned Sh. Dinesh Mathur, Senior Counsel appearing for the

appellants has submitted that the impugned judgment is full of

contradictions and it is the result of the conjectures and surmises.

Expanding on the argument, learned Senior Counsel took us through

Para 14 of the impugned judgment, which reads thus:

"It would be seen that PW4 Sadhu Ram, the father of deceased Bimla was the first person to make statement during inquest on 8.7.95. The statement is Ex. PW 4/A. It makes no reference to the demand of a maruti car. Rather Sadhu Ram states that there was no dowry demand or harassment. The story of

dowry demand was put up for the first time on 10.7.1995 at about 8.55 p.m. The prosecution explains that Sadhu Ram had not been told about harassment and dowry demands because he was not keeping good health. The deceased used to confide in her Bhabi Mamta and therefore the report was lodged only after Mamta had arrived from Nepal on 10.7.95. This explanation of delay does not stand the test of judicial scrutiny. When Mamta and her husband Lakhi Ram were examine during investigation, they did not state to the IO that Mamta was in Nepal at the time of occurrence. Thus they have made an improvement in court by saying that Mamta had gone to Nepal to see her parents. Even otherwise, Mamta has stated that her parents had gone with her to Nepal from Delhi. If the parents were in Delhi, there could be no occasion for a visit to Nepal. Then Mamta says that her father stayed back in Nepal, while PW 3 Lakhi Ram says that his father-in-law had attended the cremation of Bimla at Delhi. Further Mamta says that on return to Delhi from Nepal she had first gone to Rohtak by taxi and then came to mortuary. Her husband Lakhi Ram contradicts here and does not say anything about going to Rohtak on 10.7.95. Thus on examination of the statements of PW2 Mamta and PW 3 Lakhi Ram I feel that they have not truly disclosed the reason for delay in FIR".

Learned Senior Counsel submitted that once the Trial Court, on

analysis of evidence, came to the conclusion that the explanation

given by PW2 and PW3 for the reason for delay in filing FIR was

untrue, he ought to have rejected their testimony as unreliable,

particularly when PW4 Sadhu Ram and PW6 Kasturi Devi, parents of

the deceased have not supported the prosecution case regarding

dowry demand and harassment or cruel treatment meted out to the

deceased by her in-laws. Thus, he has strongly urged that charge

under Section 498A read with Section 34 IPC is not made out.

22. The learned Additional Sessions Judge has dealt with this issue

in Para 15 of the impugned judgment in following manner:-

"Ld. Counsel for the accused contends that delayed FIR has vitiated the prosecution story. Reliance has been placed on 46 (1992) DLT 506 Narayani Devi v/s State and 1996 (1) Crimes 153 State of Haryana Vs. Rajinder. In both cases delay in FIR was held to be fatal. The facts of those cases were, however, a little different. In those cases the person who made FIR was present at the time of inquest also and at that stage he gave a clean chit to the accused. It was therefore held that the complainant should have come out with the story of harassment at the very first opportunity. In the present case neither PW 2 Mamta nor PW 3 Lakhi Ram was present at the time of inquest. The clean chit was given by the father of the deceased girl. It is quite possible that he was not aware of the dowry demand. PW 2 Mamta and PW 3 Lakhi Ram have both stated that their parents were not keeping good health and so the demand made by the accused persons was not disclosed to them. PW 4 Sadhu Ram himself states that he had under gone surgery and that there were post operative complications. Although he said in the first instance that dowry demand had not been made, he expressed disbelief of the story circulated by the accused persons that Bimla had become unwell after taking Anacin. On 9th July when he saw abrasions near the pinna of his daughter, he expressed suspicion but the SDM pacified him. Sadhu Ram and his family must have been in a state of shock and daze to hear about the death of Bimla. They may not have been able to understand the reason at first and that may have been the reason why they did not create a fuss. When the injury on the gluteal fold was seen for the first time during post mortem, they may have decided at that stage to prosecute the accused persons".

23. We are unable to agree with the rationale of the above

approach adopted by the learned Additional Sessions Judge. The

basis of the above finding is that it was possible that PW4 Sadhu

Ram was not aware of the dowry demand when his statement

Ex.PW4/B was recorded during inquest proceedings and that both

PW2 Mamta Devi and PW3 Lakhi Ram have stated that their parents

were not keeping good health so the demand made by the

appellants was not disclosed to them. Admittedly, the deceased

died within five years of her marriage. PW3 Lakhi Ram has testified

that 15-20 days after the marriage of the deceased, he was told by

his wife that the deceased was being harassed by in-laws in

connection with their demand for a Maruti Car. He has also stated in

his cross-examination that on the receipt of the telephone call from

his brother-in-law Bajrang (appellant), he along with his mother,

brother Sanjay and two friends came to Delhi and went to the house

of the appellants. From there, they went to Jaipur Golden Hospital

and found that Bimla has died and her dead body was still in the

hospital. He has also stated in the cross-examination that on the

same night, he left for Nepal to fetch his wife and before leaving for

Nepal, he had told his brother Mohan Lal that he was going to Nepal

because everything was within the knowledge of his wife Mamta

(PW2). This evidence, if read as a whole, gives an impression that

PW3 Lakhi Ram was aware of the dowry demand and harassment

caused to the deceased, despite of that, he did not inform either the

police or his family members about the same and left for Nepal.

This conduct of PW3 is highly unnatural to make his testimony

suspect. Otherwise also, if at all, there was a dowry demand and

harassment, under the natural course of human conduct, the

deceased was expected to tell her parents about it. The parents

admittedly have not supported this allegation. Therefore, we find it

unsafe to rely upon the testimony of PW2 Mamta and PW3 Lakhi

Ram regarding the dowry demand and harassment for the reason

that they have not come out clean in respect of their explanation

regarding delay in filing of FIR. Thus, we find it difficult to sustain

the conviction of the appellants under Section 498A IPC read with

Section 34 IPC.

24. Coming to the charge of murder punishable under Section 302

IPC read with Section 34 IPC. On perusal of the impugned judgment,

it transpires that the main factor which found favour with the

learned Additional Sessions Judge to hold the appellants guilty of

murder of the deceased is his assumption that the deceased died in

the late hours of the night or in the early hours of the morning

whereas the appellants created false evidence to show that the

deceased Bimla was alive at 09:00/09:30 am in the morning and

that the appellants circulated a false story that the deceased got

unwell after taking an „Anacine‟ tablet.

25. The basis for the aforesaid conclusion that the deceased died

in the late hours of night or in the early hours of the morning is the

post-mortem report Ex.PW25/A, wherein the Autopsy Surgeon has

recorded that he found four ounces of digested food in the stomach

of the deceased. The learned Additional Sessions Judge, taking note

of said medical evidence, has referred to 5th Edition of Text Book of

Medical Jurisprudence and Toxicology by Dr. C.K.Parikh and

observed thus:

"Dr. C.K. Parikh observes at page 175 of the 5th Edition of the Textbook of Medical Jurisprudence and Toxicology that the site and state of digestion of the contents of the stomach may be of value in fixing the hour of death in relation to the last meal. He further observes that if on autopsy one finds that the stomach is full, it would suggest that the victim died within two hours of taking the last meal if food was distinguishable and four hours if food was not distinguishable. He also observes that the bulk of meal leaves the stomach within two hours and the stomach is emptied in 4 to 6 hours. In the present case 4 oz of digested food was found in the stomach. This means that the stomach had not been emptied. In other words the last meal was taken less than six hours before death. Six hours is the maximum time for emptying of stomach and therefore even if I presume that Bimla had taken very heavy diet, I cannot escape the conclusion that she died within six hours after taking the meals and before defection. The quantity of digested food in the stomach indicated that it was not breakfast but a regular meal. So there can be no doubt that Bimla died in the late hours of night or in the early hours of morning. The prosecution witnesses who state that Bimla was alive at 8.00 a.m. or later have all tried to mislead the court about the actual time of death".

26. From the above, it is apparent that the learned Additional

Sessions Judge has concluded that Bimla (deceased) died in the late

hours of the night or in the early hours of the morning on the

assumption that the food consumed by the deceased before her

death could not have been the breakfast. This assumption of

learned Additional Sessions Judge is without any foundation.

Otherwise also, if it is assumed for the sake of argument that the

deceased after her dinner had not consumed any food, then also,

the time of her death cannot be fixed on the basis of quantity of

digested/undigested food found in the stomach of the deceased

unless the time of taking of dinner is known. There is no evidence

on record to show as to at what time the deceased took food.

Therefore, we find no cogent basis for the conclusion of learned

Additional Sessions Judge that the deceased must have died in the

late hours of night or in the early hours of the morning and she was

not alive at 08:00 am or later, as stated by the prosecution‟s own

witnesses namely PW8 Dr. Ashok Ansari, PW9 Naresh Kumar, PW10

Jagdish, PW11 Ramesh Bhardwaj, PW13 Dr. Mahinder Singh and

PW18 Prahalad, who have testified that they had seen Bimla

(deceased) alive between 09:00 am to 10:00 am.

27. If for the sake of argument, it is assumed that the deceased

died in the late hours of the night or early hours in the morning as

concluded by the learned Additional Sessions Judge, then the time of

death should be somewhere around 05:00 or 06:00 am or may be

earlier. As per the MLC of the deceased Ex.PW20/A prepared at

Jaipur Golden Hospital, the deceased was brought to the hospital by

her mother-in-law Malti Devi at 10:10 am. This would imply that the

deceased reached Jaipur Golden Hospital more than four hours after

her death. If that was so, by that time, taking into consideration

that it was summer season, ordinarily onset of rigour mortis would

have started. PW20 Dr. Vishal Bhati, who purportedly attended to

the deceased, has recorded in the MLC that he tried to resuscitate

the patient by giving cardiac massage but she could not be revived.

If the deceased was dead for the last four hours, it is highly

improbable that a qualified doctor at a specialized hospital like

Jaipur Golden Hospital would have tried to revive the patient by

cardiac massage etc. This circumstance also negatives the

presumption that the deceased died in late hours of the night or

early hours of the morning.

28. On perusal of the record, it transpires that PW8 Dr. Ashok

Ansari, PW9 Naresh Kumar, PW10 Jagdish, PW11 Ramesh Bhardwaj,

PW13 Dr. Mahinder Singh and PW18 Prahalad, who are the

prosecution witnesses are categoric that they saw the deceased

alive during the period between 09:00 to 10:00 am. Learned Trial

Court has disbelieved them on the basis of medical record i.e. post-

mortem report Ex.PW25/A. He has not given any other reason for

finding these witnesses unreliable. In view of the our discussion

above, the time of death of the deceased is not firmly established,

therefore, we find that the learned Trial Judge has gone wrong in

disbelieving the abovesaid six witnesses, who have no reason to

depose falsely in favour of the appellants.

29. Learned counsel for the State has argued that even if it is

assumed that deceased Bimla was alive in the morning at around

09:00 am onwards, then also it remains unexplained as to why the

appellants circulated a false story of the deceased having become

unwell after taking „Anacine‟ tablet. In support of this contention, he

has drawn our attention to the CFSL report dated 13 th December,

1995 indicating that the viscera of the deceased on examination

gave negative results for the presence of analgesic drug which rules

out any possibility of the deceased having consumed „Anacine‟

tablet. Another factor which went against the appellants during trial

is the presence of burn injury with a press on the back of right thigh

of the deceased, which has not been explained by the appellants in

their statements under Section 313 Cr.P.C. The learned Additional

Sessions Judge has come to the conclusion that the aforesaid injury

has been caused deliberately by someone. The basis for this

conclusion is the site of the injury and also the fact that no

corresponding burn marks were found on the clothes of the

deceased. Learned counsel for the appellants has submitted that

the aforesaid burn injury could be accidental also which might have

been caused because of the deceased accidentally sitting on the hot

press. He contended that if a hot press comes in contact with the

body of a person through a cloth, then also a possibility cannot be

ruled out that because of heat, cloth may not burn but the person

may sustain the burn injury. We find substance in this contention.

Otherwise also, this circumstance alone is too weak a circumstance

to find the appellants guilty for murder of the deceased.

30. Another circumstance relied upon by the learned Additional

Sessions Judge is that the appellants had circulated a false story

that the deceased had become unwell after taking „Anacine‟ tablet,

which story, as per the prosecution is belied by the CFSL report

dated 13th February, 1995 given under the signatures of Sh. K. P.

Satapathy, Senior Chemical Examiner, CFSL wherein, it is recorded

that the viscera, on chemical examination, gave negative result for

the presence of analgesic. Learned counsel for the State has

submitted that the aforesaid report negatives the story of

consumption of „Anacine‟ by the deceased and this circumstance

points towards the complicity of the appellants in the murder of the

deceased.

31. Above argument is of no avail to the prosecution because of

the reason that the prosecution has failed to examine the linked

witnesses to establish that the viscera of the deceased reached

CFSL untampered for examination. As per the CFSL report available

on the record the wooden box purportedly containing viscera and

sample seal pertaining to this case was received in the office of

Director cum Chemical Examiner, CFSL, Calcutta on 28 th August,

1995. PW17, Head Constable Bodh Raj who was moharir malkhana,

P.S. Saraswati VIhar at the relevant time has stated that on 26 th

August 1995 piece in wooden box containing viscera of the

deceased along with sample seal to CFSL Calcutta vide RC No.

202/21/95 through Constable Naresh Kumar who purportedly

carrying the viscera to CFSL have not been examined to prove that

the sample in question was not tampered with while it was in his

custody. In absence of this link evidence we do not find it safe to

rely upon the CFSL report available on record which has not even

tendered in evidence by the prosecution.

32. In view of the discussion above, we find that prosecution has

not been able to firmly establish either circumstance No. (i) and

circumstance No. (ii). We may note that circumstance No. (iii), (iv)

and (vi) are dependent upon circumstance No. (ii). Therefore, in

view of the discussion above, those three circumstances also are not

firmly established. Thus, we are left with only circumstance No. (v),

which is not firmly established and which by itself, is not sufficient

to lead to an irrefutable conclusion that the deceased had been

killed by the appellants in furtherance of their common intention,

particularly when the motive for commission of crime is not

established. Thus, we find it difficult to sustain the conviction of the

appellants under Section 302/34 IPC also.

33. The result of above discussion is that the prosecution has

failed to establish the guilt of the appellants on both the counts.

We, therefore, set aside the impugned judgment of conviction of the

appellants and consequent order on sentence and acquit the

appellants, giving them benefit of doubt.

34. The appellants are on bail. Their bail-cum-sureties are

discharged.

35. The appeals are disposed of accordingly.

AJIT BHARIHOKE, J.

JULY 02, 2010                                 A.K. SIKRI, J.
akb