JUDGMENT 1. - These two appeals arise from the judgment of the learned Sessions Judge, Sri Ganganagar dated July 22, 1974. Appeal No. 591 of 1974 was received from Jail, which was filed by the appellant Sohan Lal and Bhagwanti and thereafter represented appeal was also filed by the appellant Sohanlal. Both the appellants have been convicted by the learned Sessions Judge for the offence under Sections 302, 201 and 364, IPC. On the first and third count, the appellants were sentenced to imprisonment for life and on the second count, to rigorous imprisonment for five years. All the substantive sentences were directed to run concurrently. 2. The prosecution case, in brief, is that the deceased Ramdayal had developed illicit relation with Mst. Phoolandevi(PW2),which enraged Sohanlal and Bhagwanti who are related to Mst. Phoolan being their Buas (father's) sister). It is said that on 25-9-73, Mst. Phoolandevi and his son Brijlal were away to Ganganagar. The appellants with Nathuram and Manphool visited the field at about 9-10 p.m. All the four accused-persons beat Ramdayal, which was observed by Vimla, Rameshwari and Amarsingh (the children of Mst. Phoolandevi). When Mst. Phoolandevi returned back to the place, incident was narrated to them. A search of Ramdayal was made but he could not be traced out. Thereupon, PW 1 Brijlal got a report (Ex. 1) written and submitted the same at the police station, Chunawat on 30 9-73 at about 5 p.m. Thereafter, a case under Section 363, IPC was registered by Jeetsingh, Head Constable. Sadhusingh, ASI (PW 10) took up the investigation, when he returned at the police station on 30-9-73. He went to village Netawala and conducted the spot investigation. He effected the arrest of the accused Bhagwanti, who was already arrested in one excise case. The accused Bhagawanti gave information in respect of a watch (Ex. 3) on 15-10-73. He also gave information regarding the lathi (Ex. 4) vide memo Ex. P 13. He recorded the statements of some witnesses. The investigation was then taken up by the S. H.O. Murlidhar (PW 17). On 16-10-73, he recovered the watch (Ex. 3) and lathi (Ex. 4) at the instance of the accused and prepared the recovery memo (Ex. P 23). On 31-10-73, PW 13 Jagdish gave information (Ex. P 18) that in the cotton field of Chunnilal, at a certain spot, bad smell is emanating, which he recorded in the Rojnamcha. On 16-10-73, he recovered the watch (Ex. 3) and lathi (Ex. 4) at the instance of the accused and prepared the recovery memo (Ex. P 23). On 31-10-73, PW 13 Jagdish gave information (Ex. P 18) that in the cotton field of Chunnilal, at a certain spot, bad smell is emanating, which he recorded in the Rojnamcha. On this information, he visited the spot, on the next day. He suspected that a dead body is buried there. So, he submitted a report to the Executive Magistrate Dr. M.P. Agrawal and the Executive Magistrate Teri M.L. Mathur visited the spot. The earth was dug and the dead body was recovered vide memo Ex. P 12. The police prepared the Furd Surat Hal Lash (Ex. P 10) and site-inspection and site-notes were also prepared. Autopsy on the dead body was conducted by Dr. M.P. Agrawal. The police seized the blood-stained clothes from the person of the deceased. The accused Sohanlal was arrested on 20-11-73. On his information, lathi (Ex. 5) was recovered vide memo Ex. P 25. The accused Manphool was also arrested en 30-12-73. The accused Nathuram remained absconding throughout trial. After completion of the investigation, challan was put up against the three accused-persons. All he three accused persons were sent up for trial to the court of Sessions Judge, Sri Ganganagar. 3. All the three accused-persons were tried for the offences under Sections 325, 364, 302 and 201, WC. The accused-persons denied the charges and claimed to be tried. At the trial, the prosecution examined as many as 17 witnesses. The statements of the accused-persons were recorded, in which, they denied the prosecution case. No evidence was led in defence. The learned Sessions Judge, after hearing the arguments, convicted and sentenced the accused-persons as aforesaid. The accused Manphool was acquitted of all the charges lavelled against him. Aggrieved against their convictions and sentences, these appeals have been filed. 4. We have heard Mr. S.R. Singhi, learned counsel for the appellants and Mr. R C. Maheshwari, learned Public Prosecutor for the State. 5. It appears that the learned Sessions Judge convicted and sentenced the appellants on the basis of the testimony of PW 3 Amarsingh, PW 4 Vimala and also on the testimony of PW I Brijlal and PW 2 Mst. Phoolan Devi. S.R. Singhi, learned counsel for the appellants and Mr. R C. Maheshwari, learned Public Prosecutor for the State. 5. It appears that the learned Sessions Judge convicted and sentenced the appellants on the basis of the testimony of PW 3 Amarsingh, PW 4 Vimala and also on the testimony of PW I Brijlal and PW 2 Mst. Phoolan Devi. The incident of beating is witnessed by PW 3 Amarsingh and PW 4 Vimala, who are the child witnesses about 10 and 8 years respectively. According to these witnesses, after beating Ramdayal, the accused-persons carried him towards the 'clhani' of Nathuram. The prosecution case further is that Ramdayal was first taken to the house of Jaimalsingh (PW 6) and from there, he was taken in a tractor to the house of Pradhan Khetpal (PW 7), who has directed to take him to the Doctor. Dhannaram (PW 9) examined Ramdayal and gave him treatment. The learned Sessions Judge found that the dead body was of the deceased Ramdayal and he also found that the watch recovered on the information and at the instance of the accused Bhagwanti is that of the deceased Ramdayal. On the basis of the aforesaid evidence, he concluded that the offence of abduction to cause murder and of the concealment of the dead body with the intention of screening the offender, are well proved and on that basis, he recorded the convictions of the two accused-persons namely; Sohanlal and Bhagwanti as aforesaid. The evidence of Amarsingh (PW 3) and Vimala (PW 4) in respect of the accused Manphool, was not believed and the name of Manphool did not appear in the report as well, so, the accused Manphool was acquitted of all the charges, which were levelled against him. 6. Mr. S.R. Singhi, learned counsel for the appellants first of all submitted that it is not proved beyond reasonable doubt that the dead body recovered on 1-11-73, was of the deceased Ramdayal. He referred to the medical evidence and submitted that the dead body was in an advanced stage of decomposition and as such, it was not identifiable. The skin was completely pealed off and also the soft tissues fallen off. He referred to the medical evidence and submitted that the dead body was in an advanced stage of decomposition and as such, it was not identifiable. The skin was completely pealed off and also the soft tissues fallen off. The identification of the dead body on the basis of shirt and chadar would not be proper and would not be clinching, more particularly when in the first information report, it is not given that the deceased Ramdayal was wearing a chadar and an blue shirt. As the description of the clothes as well the other description of the person of Ramdayal having not been given in the first information report and in that earlier investigation, the evidence relating to the recovery of the dead body at the instance of the accused suffers from infirmity. 7. We are unable to agree with the submission of Mr. Singh In connection with the identification of the dead body, there are the statements of PW I Brijlal, PW 2 Mst. Phoolandevi, PW 3 Amarsingh and PW 4 Vimala. All these witnesses have identified the clothes of the deceased and besides that it has also come in the statement of PW I Brijlal that he identified the dead body after observation of it. He categorically stated that the dead body was identifiable by head and face. The hair on the dead body were grey. No specific question was put to PW I Brijlal as to how he identified the dead body by observing the head and face. The testimony of all the four witnesses is nowhere shaken. So far as the clothes found on the body, are concerned, it may he stated that the dead body can be identified on that basis as well. There is another circumstances, which has come on the record. PW 2 Mst. Phoolandevi in her cross-examination stated about the height of the deceased as 6 ft. Dr. M.P. Agrawal stated the height of the deceased was 5'-11" from vertex to heel. In order to satisfy ourselves, we looked into the statement of Mst. Phoolandevi, recorded on 1-10-73, it appears from her statement that she had given the height as 6 ft. of the deceased. Thus, on the basis of the evidence on record, in our opinion, it, it fully established that the dead body recovered from the spot, was of Ram-dayal deceased. 8. Phoolandevi, recorded on 1-10-73, it appears from her statement that she had given the height as 6 ft. of the deceased. Thus, on the basis of the evidence on record, in our opinion, it, it fully established that the dead body recovered from the spot, was of Ram-dayal deceased. 8. The most material question in the case is as to how the deceased Ramdyal met his death. In order to hold the accused guilty of the offence under Section 302, IPC., it is bounden duty of the prosecution to prove the guilt of the accused that the death was homicidal in nature. It is to be seen as to whether the prosecution has been able to establish that the death was homicidal in nature. Dr. M.P Agrawal has not stated as to what was the cause of death, as the body was found in an advanced stage of decomposition. All the organs, visceral and soft tissues had Fallen off. He has also stated that all the bones were intact and he observed that no fracture was seen on the body. Thus, from the medical evidence, it cannot be found that the case of death was violence. The other evidence on record consists of the statements of PW 3 Amarsingh and PW 4 Vimla Both these witnesses have simply stated that all the four accused-persons assaulted the deceased and number of blows were inflicted on the person of Ramdayal, who were armed with lathis. They also stated that the blows were inflicted on the back and on the other parts of the body. These witnesses have also stated that the accused-persons then carried away Ramdayal with them. PW 6 Jaimalsingh, PW 7 Khet pal Pradhan and PW 9 Dhannaram have not supported the prosecution case and all these witnesses were allowed to cross examine by the Public Prosecutor. According to Jaimalsing (PW 6), Nethuram and Bhagwanti were with the deceased and none else was with him. He simply observed the injury on the elbow and on the back of Ramdayal. PW 9 Dhannaram stated that he had been one injury, a dragging mark on the elbow of Ramdayal. It may be mentioned that the dead-body was recovered as late as 1-11-73. There is no material on record to establish as to what happened with Ramdayal after 25-9-73 9. Mr. PW 9 Dhannaram stated that he had been one injury, a dragging mark on the elbow of Ramdayal. It may be mentioned that the dead-body was recovered as late as 1-11-73. There is no material on record to establish as to what happened with Ramdayal after 25-9-73 9. Mr. R.C. Maheshwari, learned Public Prosecutor urged that the incriminating circumstances i.e. recovery of the dead-body and of the watch and the last seen are most material from which, it can safely be concluded that the appellants along with some none-else caused the murder of the deceased Ramdayal. The deceased Ramdayal was last seen in the company of the accused-persons soon-after the incident of assault and thereafter his whereabouts were not known. The accused Bhagwanti, Sohanlal and Manphool were arrested on 1-10-73, 20-11-73 and and 30-12-73 respectively and the accused Nathuram was absconding throughout investigation and trial, so, it should be taken that Ramdayal was done to death in between 25-9-73 and 1-10-73. On 1-11-73, the dead-body of Ramdyal was recovered. If these circumstances are looked into cumulatively, they show what that the appellants had committed the murder of Ramdayal. According to Mr. Maheshwari, the conclusion would be irresistible and will reasonably lead to an inference that except Manphool, all the accused-persons abducted the deceased and after causing death, they disposed of the dead-body by burrying it, in the field of Chunnilal. 10. If the above circumstances are looked into ignoring the conduct of the accused-persons, these circumstances may ex facie, indicate that the accused-persons may in somewhat be responsible.But these circumstances will have to be looked into in the light of the prosecution evidence. This part of the prosecution case cannot be ignored that the accused-persons took Ramdayal for treatment to PW9 Dhannaram and according to him, the treatment was given to the deceased. Some drops were administered and injection was given. This conduct of the accused-persons does not point out that the accused-persons intended to cause the death of Ram Dayal. On the contrary, it shows that having assaulted, him, they wanted to save him. The nature of the assault cannot be considered to be severe. If the assault would have been severs, it would have resulted into fractures. But as per the medical evidence, all the bones were intact and no fracture was observed at the time of post-mortem. On the contrary, it shows that having assaulted, him, they wanted to save him. The nature of the assault cannot be considered to be severe. If the assault would have been severs, it would have resulted into fractures. But as per the medical evidence, all the bones were intact and no fracture was observed at the time of post-mortem. After 25-9-73, the prosecution is absolutely silent, where the deceased remained and what happened to him. According to the medical evidence, the death must have occurred between 5-10 days before the post-mortem, which was conducted by Dr. M.P. Agrawal on 1-11-73. Although at the end of the statement Dr. M.P. Agrawal stated that the exact time and date of death cannot be pin pointed. But he has also stated in his statement that the time of death may be a day earlier or a day after. The approximate time, which he has given in his statement, is that the deceased met his death 5-10 days before the post-mortem. If viewed in the light of the medical evidence, it would be simply a conjecture that the deceased must have met his death between 25-9-73 and 1-10-73. When the time of death cannot be safely ascertained in that situation, the evidence of the last seen would become weak and the circumstance of last seen would no longer remain a satisfactory circumstances. If judged in the light of the conduct of the accused-persons, it can not be found that the assault caused to the deceased in the night of 25-9-73 resulted in the death of the deceased. If it is so, the prosecution has failed to establish that the deceased met with a homicidal death. What the prosecution has been able to prove, is only this, that the appellants assaulted the deceased with lathis causing simple injuries and the prosecution on the basis of direct and indirect or circumstantial evidence has failed to establish that the accused persons are guilty of the offence under Sections 302 and 364, IPC. It has failed to prove that the offence under Section 201, IPC is made out against the accused persons. Admittedly, the dead-body has been recovered at the instance of the accused persons, but has been recovered on the information of the witness Jagdish. The only offence, which has been brought home to the accused-persons beyond reasonable doubt is 323, IPC. 11. Admittedly, the dead-body has been recovered at the instance of the accused persons, but has been recovered on the information of the witness Jagdish. The only offence, which has been brought home to the accused-persons beyond reasonable doubt is 323, IPC. 11. Much emphasis has been placed on the circumstance of the recovery of watch on the information and at the instance of the accused Bhagwanti. We may take it that the recovery of the watch is proved from the possession of the accused Bhagwanti belonging to the deceased. This circumstance of recovery, in our opinion, is insufficient to connect the appellants with the commission of the offence of murder or with any other offence. The accused Bhagwanti, no doubt, has denied giving of the information in respect of the watch. Besides that there is no evidence on record to prove that at the time of the incident i.e. on 25-9-73 the deceased was wearing the wrist watch, so, in the circumstances of the case, in our opinion, the recovery of the watch, which may be taken to be proved belonging to the deceased, is inconsequential. 12. In the above view of the matter, we are unable to sustain the conviction of the accused-persons under Section 302, 201 and 364, IPC, and the appellants are only held guilty of the offence under Section 323, IPC. 13. According, we allow both the appeals in part and set aside the conviction and sentences awarded to the accused-persons for the offences under sections 302, 201 and 364, IPC. However, we convict the appellants for the offences under Section 323 IPC. They have remained in custody beyond the period of sentence prescribed under Section 323 IPC. So far the said offence, they have already served out the sentence. They are on bail, so, they need not surrender to their bail-bonds.Appeal partly allowed. *******