JUDGMENT 1. 1. This appeal has been filed Under Section 374(2), Criminal Procedure Code. against the judgment dated 6.11.1993 passed by the learned Sessions Judge, Churu in Sessions Case No. 34/92 whereby he convicted the accused-appellants Under Section 364, Indian Penal Code awarding a sentence of 10 years' R.I., and a fine of Rs. 10,000/- and, in default of payment of fine, further S.I. of 2 years. 2. The prosecution story, briefly stated, is that Jagdish (deceased), along with his mother was residing in the village Sehnali Badi in Police Station, Ratannagar with PW 14 Gordhan. On 28.4.1992 at 11.30 a.m., PW 14 Gordhan lodged a verbal report with PW 23 Lakhmeer Singh, Officer-in-charge of the Police Station, Ratannagar, alleging that in the morning of previous day, he along with Jagdish and PW 12 Sunder Lal had gone to Churu for purchasing some goods. After purchases were made, at about 5.00 p.m., Jagdish left their company. Both Gordhan and Sunder Lal boarded a bus plying from Churu to Ramgarh. When the bus reached the turn of the village Sheopura, they saw a crowd of some people and they found that two persons (accused-appellants) were abusing Jagdish and they were threatening him to pay tax fare. An auto ricksaw (three wheeler) No. RJI 2653 was also standing there. Sunder Lal told them that he is arranging for the fare money and Jagdish should not be hurt. Sunder Lal collected Rs. 10/- each from PW 1 Chatru Ram and PW 3 Mst. Shanti, who were residents of village Sheopura. However, accused were insisting upon for payment of Rs. 30/- as taxi fare. Since Rs. 10/- more were being demanded, which Jagdish as well as Sunderlal and Gordhan were not in a position to arrange immediately. Accused-appellant Ahsan was driver of the vehicle while Yaqub Ali was conductor of the same. Ahsan insisted for immediate payment of the taxi fare. They forcibly put Jagdish into the tempo and then also gave him thrashing, as alleged, they threatened Jagdish to kill him to death. Gordhan unsuccessfully tried to intervene and apologised but the accused did not release Jagdish and they left from there in the tempo along with Jagdish,Jagdish on returning to his house, narrated this incident to PW 9 Mst. Kalia, mother of Jagdish. They weighted for return of Jagdish throughout the night. Gordhan unsuccessfully tried to intervene and apologised but the accused did not release Jagdish and they left from there in the tempo along with Jagdish,Jagdish on returning to his house, narrated this incident to PW 9 Mst. Kalia, mother of Jagdish. They weighted for return of Jagdish throughout the night. On the morning of 28.4.1992 itself, Sunder Lal was summoned and Gordhan as well as Sunder Lal left for Churu in the bus. At about 9.30 a.m., they reached the crossing of village Depalsar and they found some persons standing on the road. The bus driver stopped the bus. They saw that the dead body of Jagdish was lying by the road side. It was bleeding from his head and mouth. Therefore, it was reported that since Jagdish had failed to pay full taxi fare and, therefore, he was killed to death by both the accused appellants. On this Ex. P/17 FIR was recorded by lakhmeer Singh and investigation was taken up by PW 24 Murlidhar Charan, Dy. S.P., Churu. He inspected the site. He seized a pair of `chappals', a red-cloth-sheet, plastic bag and clothes were found on the dead body. He got the photographs of dead body. Accused were arrested vide Ex. P/30 and Ex. P/31. An autopsy of the dead body was conducted by PW 19 Dr. Hanuman Singh Rathore. He found as many as 14 injuries on the dead body. Out of them 9 were abrasions and 4 were bruises. All these 13 injuries were simple. However, a lacerated wound over the right parietal part of scalp near middle line 6" away from right mestoid process of bone measuring 1" x 1/2" x 1" was found, as a result, right parietal bone was found to be fractured. There was formation of the haemotoma in between right parietal lobe or brain and bone and right middle meningeal artery was ruptured. This injury was found to be fatal. As a result, it was opined that Jagdish had died due to shock as a result of haemorrhage (intra-cranial). 3. On completion of investigation, the Police presented a charge-sheet Under Sections 302/34 & 364, Indian Penal Code as well as Under Section 3(l)(x), SC/ST (Prevention of Atrocities) Act, 1985 in the Court of the then Munsif & Judicial Magistrate, First Class, Churu. 3. On completion of investigation, the Police presented a charge-sheet Under Sections 302/34 & 364, Indian Penal Code as well as Under Section 3(l)(x), SC/ST (Prevention of Atrocities) Act, 1985 in the Court of the then Munsif & Judicial Magistrate, First Class, Churu. Since the same was exclusively triable by the Court of Sessions, accused was committed to the Court of Sessions, Churu. The learned Sessions Judge charged-sheeted the accused for commission of offences punishable Under Sections 364 & 302/34, Indian Penal Code, to which both the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution examined as many as 24 witnesses, namely, PW 1 Chatru Ram, PW 2 Tulsi Ram, PW 3 Mst. Shanti, PW 4 Ram Gopal, PW 5 Fateh Mohd., PW 6 Milap @ Girdhari, PW 7 Bhagirath, PW 8 Shishpal, PW 9 Mst. Kalia, PW 10 Bhani Ram, PW 11 Mahendra Singh, PW 12 Sunder Lal, PW 13 Saddique, PW 14 Gordhan, PW 15 Surendra Kumar, PW 16 Kodu Ram, PW 17 Om Prakash, PW 18 Govind Prasad, PW 19 Dr. Hanuman Singh Rathore, PW 20 Bhanwar Singh, PW 21 Phool Chand Jhajharia, PW 22 Amar Singh, PW 23 Lakhmeer Singh and PW 24 Murlidhar. 4. The accused were examined Under Section 313, Criminal Procedure Code. and they totally denied the jurisdiction evidence. They pleaded innocence and did not adduce any evidence in their defence. 5. The learned Sessions Judge, after hearing both the parties, vide his impugned judgment concluded that the prosecution has failed to prove beyond reasonable manner of doubt that the accused had committed murder of Jagdish. Therefore, giving benefit of doubt, he acquitted both the accused-appellants from the offence punishable Under Section 302/34, Indian Penal Code. However, the learned Sessions Judge, held both the accused-appellant liable for commission of an offence punishable Under section 364, Indian Penal Code and, therefore, passed the impugned judgment and sentences as referred to above. 6. I have heard the learned counsel for the appellants as well as the learned Public Prosecutor for the State and have perused the record of the case carefully. 7. The learned counsel for the appellants has vehemently contended that the prosecution examined as many as 24 witnesses and, out of them, PW 1 Chatru Ram, PW2 Tulsi Ram, PW 3 Mst. 7. The learned counsel for the appellants has vehemently contended that the prosecution examined as many as 24 witnesses and, out of them, PW 1 Chatru Ram, PW2 Tulsi Ram, PW 3 Mst. Shanti, PW 4 Ram Gopal, PW 7 Bhagirath, PW 8 Shishpal, PW 10 Bhani Ram and PW 11 Mahendra Singh did not support the prosecution case. The jurisdiction, on the pretext of their being hostile to the prosecution, cross-examined, and there is nothing on record to hold that they were hiding the truth from the Court. The learned Sessions Judge has concluded that the prosecution failed to prove that the accused-appellant committed murder of Jagdish. Even then, relying on the statements of PW 12 Sunder Lal and PW 14 Gordhan who are directly interested in the deceased, erred in convicting the accused-appellants. Mst. Kalia PW 9 has clearly stated that PW 14 Gordhan was present in the village whereas Jagdish alone had gone to Churu to work as labourer. Therefore, statements of Sunder Lal and Gordhan do not inspire confidence and they were far from being wholly reliable witnesses. They did not report the matter to the police in the night itself. Had they apprehended any danger to the life of Jagdish, they could not have kept mum till they found Jagdish lying dead. It is further contended that the accused, as per version of the prosecution, were insistent upon realising Rs. 30/- as taxi fare and as per the prosecution story, Rs. 20/- were already collected and paid. That being so, only balance of Rs. 10/- was to be realised. It is not natural and probable that the accused must have taken the risk of committing murder of Jagdish for a petty amount of Rs. 10/- only. It is also argued that the prosecution has not been able to prove beyond reasonable manner of doubt that the accused alone forcibly took away Jagdish with them in their taxi and, however, if it is held to be proved, even then there is no direct or circumstantial evidence to conclude that Jagdish was subsequently murdered by the accused. Therefore, accused deserve to be acquitted of offence punishable Under section 364, Indian Penal Code as well. 8. Therefore, accused deserve to be acquitted of offence punishable Under section 364, Indian Penal Code as well. 8. The learned Public Prosecutor, while opposing the appellants arguments, maintained that the learned Sessions Judge, extended the benefit of doubt to the accused for commission of an offence punishable Under Section 302/34, Indian Penal Code but, rightly passed a verdict of guilty Under section 364, Indian Penal Code and no interference is called for. 9. After considering the rival submissions of both sides, so far as the violent and unnatural death of Jagdish is concerned, it is not disputed. Besides, PW 9 Mst. Kalia, who is mother of the deceased and being sister of PW 14 Gordhan's father, was residing with Gordhan along with her son Jagdish deceased, PW 12 Sunder Lal and PW 14 Gordhan as well as PW 23 Lakhmeer Singh, who had reached spot just after recording FIR Ex. P/17 as well as PW 24 Murlidhar Charan have clearly stated that Jagdish was lying dead at the said place of occurrence. PW 24 Murlidhar inspected the site and prepared Ex. P/18 site plan. He also prepared inquest report as well as panchyatnama of dead body being Ex. P/19 and Ex. P/20. PW 19 Dr. Hanuman Singh conducted post-mortem of the dead body of Jagdish. He found as many as 14 injuries on the dead body. He found a lacerated wound which resulted in fracturing the right parietal bone, as a result of which brain was damaged and it proved to be the direct cause of death of Jagdish. Rest of the 13 injuries were found to be simple. He prepared Ex. P/32 post-mortem report. 10. Therefore, on the basis of the statements of the said witnesses as well as the medical evidence, which could not be challenged by the accused-appellants, the prosecution proved beyond any manner of doubt that Jagdish was violently done to death. For bringing home guilt to the accused Under Section 364, Indian Penal Code, the prosecution is required to prove beyond a reasonable manner of doubt that the accused-appellants abducted Jagdish in order that he may be murdered, or may be so disposed of so as to be put in the danger of being murdered. 11. For bringing home guilt to the accused Under Section 364, Indian Penal Code, the prosecution is required to prove beyond a reasonable manner of doubt that the accused-appellants abducted Jagdish in order that he may be murdered, or may be so disposed of so as to be put in the danger of being murdered. 11. So far as the prosecution evidence is concerned, as is argued by the learned counsel for the appellants, PW 1 Chatru Ram, PW 2 Tulsi Ram, PW 3 Shanti, PW 4 Ram Gopal, PW 7 Bhagirath, PW 8 Shishpal, PW 10 Bhani Ram and PW 11 Mahendra Singh did not support the prosecution story. Therefore, a large number of prosecution witnesses have not supported its case. 12. PW 5, Fateh Mohd. is the registered owner of the taxi. He has also admitted that accused Ahsan was employed as a regular driver of the taxi vehicle. However, he stated that at the time of the occurrence he was at Madras. Accused Ahsan did not dispute that he was the driver of the taxi. PW 6 Milap @ Girdhari, who has also been got declared hostile and cross-examined by the learned public prosecutor, stated that he is also running a taxi vehicle. On the previous day of the occurrence at about 6.00 p.m., he was approached by one person (deceased), who wanted to take him to village Depalsar but, since his vehicle was not in order and, therefore, he refused. Then he hired the taxi of Ahsan. Accused Yakub was also with him. 13. PW 9 Mst. Kalia stated that Jagdish left to work as a labourer at Churu in the morning of 27.4.1992. She learnt on 28.4.1992 that her son Jagdish was killed for a petty amount of Rs. 5/- or 10/-. Her statement is of formal nature. However, death of Jagdish is not disputed. 14. PW 12 Sunder Lal is living in the neighbourhood of PW 14 Gordhan. He stated that he had gone to Churu to make some purchases along with PW 14 Gordhan and Jagdish (deceased) in the morning of 27.4.1992. On reaching Churu, Jagdish had separated from them. In the evening, both he as well as Gordhan reached Sheopura by a bus. On reaching Sheopura, they saw Jagdish and the accused along with their taxi vehicle standing there. Accused were demanding taxi fare from Jagdish. They collected Rs. On reaching Churu, Jagdish had separated from them. In the evening, both he as well as Gordhan reached Sheopura by a bus. On reaching Sheopura, they saw Jagdish and the accused along with their taxi vehicle standing there. Accused were demanding taxi fare from Jagdish. They collected Rs. 10/- each from PW 1 Chatru Ram and PW 3 Shanti. Both, Chatru Ram and Shanti have denied that they ever gave said money to Sunder Lal or Jagdish. Similarly PW 4 Ram Gopal and PW 8 Shishpal also did not support the prosecution case. However, Sunder Lal further stated that the accused were not satisfied with Rs. 20/- and hence they forcibly put Jagdish into the taxi vehicle and they left from there. Sunder Lal and Gordhan both returned to their village. They left in search of Jagdish on the morning of 28.4.1992 in a bus. On reaching the crossing of Sheopura, they saw dead body of Jagdish lying by the road side. He went to the Police Station, Ratan Nagar along with PW 14 Gordhan. Gordhan lodged Ex. P/17 FIR with PW 23 Lakhmeer Singh, as is supported by Lakhmeer Singh himself. He admitted in cross-examination that Jagdish had left their company at about 12-1 p.m. on 27.4.1992. 15. PW 14 Gordhan stated that he went to Churu along with PW 12 Sunder Lal and Jagdish for making purchases. Jagdish had separated from them at Churu. After making purchases, he along with PW 12 Sunder Lal boarded the bus for their village. On reaching Sheopura bus stand, they saw a crowd assembled there. An auto rickshaw (three wheelers) was standing there. They found that the accused were quarrelling with Jagdish. They told the accused that they would arrange for the taxi fare from the villagers. Accused were demanding fare of Rs. 30/-. Gordhan collected Rs. 20/- from Chatru Ram and Shanti as a taxi fare. Gordhan requested them to leave Jagdish and promised that they will arrange for the remaining taxi fare but the accused insisted for immediate payment of Rs. 30/-. Since Jagdish failed to arrange for payment of taxi fare, accused persons forcibly took away Jagdish in the taxi vehicle. They also assaulted Jagdish. While taking away Jagdish, accused threatened that Jagdish would not be left alive. 16. He further stated that both Chatru Ram and Shanti were also present there. 30/-. Since Jagdish failed to arrange for payment of taxi fare, accused persons forcibly took away Jagdish in the taxi vehicle. They also assaulted Jagdish. While taking away Jagdish, accused threatened that Jagdish would not be left alive. 16. He further stated that both Chatru Ram and Shanti were also present there. However, Chatru Ram and Shanti do not support this version of PW 14 Gordhan. 17. Gordhan further stated that he returned home in the evening. He narrated this incident to PW 9 Mst. Kalia. Jagdish did not return in the night. He accompanied by PW 12 Sunder Lal, left by bus for Churu at about 9.00 a.m. on reaching the crossing of village Depalsar, they found that a crowd had assembled by the road side. He saw that dead body of Jagdish was lying there. There were multiple injuries on the body of the deceased. He along with PW 12 Sunder Lal reached Police Station, Ratan Nagar and lodged Ex. P/17 FIR with the said Officer-in-charge of the Police Station. 18. Therefore, there are statements of PW 12 Sunder Lal and PW 14 Gordhan alone to support the prosecution story that the accused persons alone took away forcibly Jagdish in their taxi vehicle from Sheopura bus stand towards Churu. Jagdish was last seen alive at about 6.30 p.m. on 27.4.1992 in the company of the accused persons. He was never seen again alive. It was on 28.4.1992 at 9.30 a.m. itself that both Sunder Lal and Gordhan found Jagdish lying dead by the road side near the crossing of the village Depalsar. There is a distance of about 5 kms. between the village Sheopura and the village Depalsar. 19. Both Sunder Lal as well as Gordhan have admitted that the accused persons were not previously known to them. Both Sunder Lal and Gordhan have identified both the accused persons in the Court. Sunder Lal and Gordhan had ample opportunity to have conversed with the accused persons at the Sheopura turn from where accused persons are alleged to have forcibly taken away Jagdish. They had ample opportunity to see both the accused persons. They have identified them in the Court at the time of their examination. Besides, accused Ahsan was arrested by PW 24 Mulidhar vide Ex. P/30 and accused Yakub was arrested vide Ex. P/31 by him. As Ex. P/30 and Ex. They had ample opportunity to see both the accused persons. They have identified them in the Court at the time of their examination. Besides, accused Ahsan was arrested by PW 24 Mulidhar vide Ex. P/30 and accused Yakub was arrested vide Ex. P/31 by him. As Ex. P/30 and Ex. P/31 reveal, both of them were kept `baparda'. 20. PW 21 Phool Chand Jhajharia, the then Munsif and Judicial Magistrate, First Class, Churu has deposed that as per the order of Chief Judicial Magistrate, Churu, vide Ex. P/35 (C to D), he conducted test identification parade of the accused on 27.5.1992 at 4.30 p.m. in the premises of the District Jail, Churu. Both, PW 12 Sunder Lal and PW 14 Gordhan had correctly identified both the accused persons who were mixed with 12 other inmates of the jail. He prepared test identification memorandum Ex. P/23. Ex. P/36 is the list of all those jail inmates who were mixed up in the test identification parade. He also stated in cross-examination that the accused were produced before him on 2.5.1992 and their faces were covered with clothes. They were remanded to the police custody for two days for the purposes of investigation and lastly, on 4.5.1992, both the accused were remanded to judicial custody and were ordered to be kept `baparda'. He has clearly stated that accused were produced baparda on both occasions and they were remanded as such to the judicial custody. 21. PW 24 Murlidhar Charan has also lent support to this statement. The statement of Phool Chand Jhajharia was not challenged seriously in his cross-examination. There is no reason to disbelieve the statement of Phool Chand. There is no infirmity or any irregularity committed by him. Therefore, his testimony inspires full confidence. In the result, so far as the identity of the accused is concerned, both PW 12 Sunder Lal and PW 14 Gordhan have identified them at the time of their examination in the Court and both of them had identified both the accused persons at the time of test identification parade vide Ex. P/23 conducted by PW 21 Phool Chand Jhajharia. That being so, as is also partly supported by PW 6 Milap @ Girdhari, statements of PW 12 Sunder Lal and PW 14 are wholly reliable. P/23 conducted by PW 21 Phool Chand Jhajharia. That being so, as is also partly supported by PW 6 Milap @ Girdhari, statements of PW 12 Sunder Lal and PW 14 are wholly reliable. They had also given their names and addresses, as were revealed by both the accused persons at the time when they left the turn of Sheopura along with the deceased. Therefore, there cannot be any serious objection to the admissibility of the statements of Sunder Lal and Gordhan. Besides, PW 6 Milap and PW 5 Fateh Mohd. also lend corroboration to the statements of Sunder Lal and Gordhan. On the basis of same evidence, it is also proved beyond reasonable manner of doubt that Jagdish had hired the taxi of the accused. On reaching the turn of Sheopura village, accused persons insisted for payment of Rs. 30/- as taxi fare which Jagdish was unable to arrange. As a result, as is deposed to by PW 12 Sunder Lal and PW 14 Gordhan, they unsuccessfully tried to intervene and promised to the accused that they would arrange for payment of the taxi fare at Churu itself but this did not satisfy the accused persons who started beating Jagdish and lastly they forcibly put him in the taxi and left for Churu. As concluded hereinbefore, Jagdish was never seen again alive. It was after about 15 hours on 28.4.1992 that Jagdish was found lying dead at a distance of about 5 kms. from Sheopura turn near crossing of village Depalsar. 22. The learned counsel for the appellant has assailed the statements of PW 12 Sunder Lal as well as PW 14 Gordhan alleging that PW 9 Mst. Kalia stated that Gordhan was present in the village on 27.4.1992 while the prosecution story is that both Sunder Lal as well as Gordhan had accompanied Jagdish from their village to Churu and it was in the evening of 27.4.1992 itself that Sunder Lal and Gordhan happened to see Jagdish at the turn of Sheopura village as stated above. Therefore, it has been argued that Gordhan could not have been present there, otherwise, had he seen the occurrence of 27.4.1992, he could not have remained silent throughout the night. Further more in case statements of Sunder Lal and Gordhan are relied upon, their conduct was most unnatural and unreliable. Therefore, it has been argued that Gordhan could not have been present there, otherwise, had he seen the occurrence of 27.4.1992, he could not have remained silent throughout the night. Further more in case statements of Sunder Lal and Gordhan are relied upon, their conduct was most unnatural and unreliable. Had they seen such an occurrence, they would have immediately reported the matter to the police. Even on 28.4.1992, when they suspected that Jagdish could have been done to death by the accused persons, they could have straight way aproached to the police and lodged an FIR but they did not do so. Similarly, PW 9 Mst. Kalia could not have remained silent had she been informed about the incident of 27.4.1992 by PW 14 Gordhan. Here it is to be seen that presence of Gordhan is borne out of Ex. P/17 FIR lodged by PW 14 Gordhan, in the company of Sunder Lal himself before PW 23 Lakhmeer Singh. Besides, PW 12 Sunder Lal has consistently maintained that he had gone to Churu in the company of PW 14 Gordhan accompanied by Jagdish. Although, PW 9 Mst. Kalia has admitted that Gordhan was present in the village on 27.4.1992 in a casual admission but there is no rhyme or reason to disbelieve statements of PW 12 Sunder Lal as also PW 14 Gordhan. Therefore, on the basis of statements of PW 12 Sunder Lal, PW 14 Gordhan and PW 6 Milap @ Girdhari, as is supported by PW 9 Mst. Kalia as well as Ex. P/17 FIR, it is proved beyond reasonable manner of doubt that both the accused-appellants forcibly carried Jagdish in their vehicle on 27.4.1992 from the turn of village Sheopura. 23. Thereafter, as held above, Jagdish was never seen alive again. He was found dead in the morning of 28.4.1992. 24. The learned Sessions Judge did not hold the accused-persons liable for commission of an offence of murder of the Jagdish and, therefore, he proceeded to acquit both the accused-appellants from the charge of murder. 25. Therefore, the learned counsel for the appellants relying on the decision rendered in Upendra Nath Ghose v. Emperor, AIR 1940 Calcutta 561 , argued that the prosecution has not brought home guilt to the accused for commission of an offence punishable Under Section 364, IPC. 25. Therefore, the learned counsel for the appellants relying on the decision rendered in Upendra Nath Ghose v. Emperor, AIR 1940 Calcutta 561 , argued that the prosecution has not brought home guilt to the accused for commission of an offence punishable Under Section 364, IPC. To establish an offence under the aforesaid Section 364, Indian Penal Code, it must be proved that the accused-persons had an intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. In the same case, it was also held that when such a case mainly depends on circumstantial evidence, as is case in hand, the question of motive is of great importance. However, as the argument goes, it is further contended that, as discussed hereinbefore, as per the statements of PW 12 Sunder Lal and PW 14 Gordhan though Jagdish had hired the taxi of the accused and reached the turn of Sheopura village but Jagdish did not have fare of Rs. 30/- to pay to the accused. This was the main cause and as alleged the motive for commission of alleged murder or the alleged abduction of Jagdish by the accused person with the said design. Here it is to be noted that, as per the prosecution version, Rs. 10/-were collected from PW 1 Chatru Ram and PW 3 Shanti each, but both of them have denied it. Not only this, PW 4 Ram Gopal and PW 8 Shishpal, who were also alleged to be witnesses of this incident, did not support the prosecution story. 26. On the basis of their not supporting the prosecution story, the same becomes very week. However, having regard to the statements of PW 12 Sunder Lal and PW 14 Gordhan alone, in case it is believed that a dispute arose about non-payment of the taxi fare to the accused-persons by Jagdish, the accused had forcibly taken away Jagdish in their taxi from the turn Sheopura. Accused were insisting for payment of taxi fare only. This related to a paltry amount of Rs. 30/- only. As per the version of Sunder Lal and Gordhan Rs. 20/- were already paid to the accused, whereas balance amount was yet to be realized. Accused were insisting for payment of taxi fare only. This related to a paltry amount of Rs. 30/- only. As per the version of Sunder Lal and Gordhan Rs. 20/- were already paid to the accused, whereas balance amount was yet to be realized. Though Sunder Lal and Gordhan have deposed that the accused threatened that in case of non-payment of taxi fare, Jagdish would be done to death but, non-payment of paltry amount of taxi fare does not provide a strong motive for commission of murder. The accused might have intended to take away Jagdish in the vehicle for realisation of taxi fare. They had hardly any motive sufficient much less a stronger one to commit murder of Jagdish. 27. PW 12 Sunder Lal did not state in so many words that the accused threatened Jagdish to be killed to death in case they were unable to realise the balance amount of taxi fare. That being so, there is solitary statement of PW 14 Gordhan to support this fact. PW 14 Gordhan stated that Jagdish was beaten up in his presence and he was forcibly put into the taxi vehicle and taken away by the accused. They had threatened to kill Jagdish. He stated in Ex. P/17 FIR that Jagdish was threatened by the accused who were demanding taxi fare. Jagdish was told that in case he failed to pay taxi fare, he would be done to death. 28. The prosecution has failed to produce any circumstantial evidence to show that Jagdish was taken to the crossing of village Depalsar, where his dead body was lying, as per Ex. P/18 site plan, or he was taken to any other place. Actual time of his death is not known. Although as many as 14 injuries were seen on his body but out of them only one head injury, described at S. No. 1 in Ex. P/32 post-mortem report resulted in fracturing the right parietal bone which damaged the brain of Jagdish, resulting in his death. Rest of the injuries were simple, out of them, 9 were abrasions while 4 were bruises. PW 19 Dr. Hanuman Singh Rathore, who belonged to the same village to which deceased belonged, admitted in his cross-examination that most of such injuries can be caused by a fall from a vehicle in a stage of drunkenness. Rest of the injuries were simple, out of them, 9 were abrasions while 4 were bruises. PW 19 Dr. Hanuman Singh Rathore, who belonged to the same village to which deceased belonged, admitted in his cross-examination that most of such injuries can be caused by a fall from a vehicle in a stage of drunkenness. Here it is also worth while to mention that PW 24 Murlidhar Charan, pursuant to information given Under Section 27 of the Evidence Act by accused Yakub vide Ex. P/39, he recovered a string and a piece of wood from the residence of the accused vide Ex. P/28 and it was found that the piece of wood bore stains of blood and the same along with some other articles, were sent to the chemical examiner. However, the prosecution failed to produce result of the chemical examination of such articles, if any. Therefore, this recovery is of no consequence. However, the prosecution has not been able to prove that Jagdish could not have been done to death except by accused persons. The dead body of the deceased, found after about 15 hours of the occurrence when he was seen alive lastly, bore as many as 14 injuries. It is not proved as to whether the accused persons alone had hurt and caused his death or he was subjected to beating and then dropped at the place where he was found lying dead or he was taken to some other place. This possibility also cannot be excluded that he might have been travelling either on foot or by some vehicle when he was fatally hurt. Since he had received only one fatal injury and rest of the injuries were simple, there is no common intention proved on the part of the accused and, therefore, it could not be held by the learned trial Judge as to whether Jagdish was murdered and more so by the accused persons alone. Therefore, as held by the learned trial Judge, there is no direct nexus between the alleged abduction of Jagdish and the alleged act of the accused-persons. 29. As has been held above, accused were insisting for payment of taxi fare alone and they had no intention to kill Jagdish. Since Jagdish failed to pay taxi fare, they put him into the taxi and left in their taxi. 29. As has been held above, accused were insisting for payment of taxi fare alone and they had no intention to kill Jagdish. Since Jagdish failed to pay taxi fare, they put him into the taxi and left in their taxi. There is no direct or other circumstantial evidence on the face of most of the witnesses turning hostile to the prosecution, that the accused had committed murder of Jagdish for a paltry taxi fare. 30. The learned counsel for the appellant relied on the decision rendered in Narain Singh & 2 Ors. v. State, 1982 Cr.L.R. (Raj.) 1982 in support of his contention. In this case Khachera (deceased), who was also subjected to as many as 19 injuries and lastly, resulting in his death by strangulation, was allegedly taken away by the accused persons, it was held that the accused did not have any intention to cause the death and a petty matter of such paltry amount being due, he could not have been done to death on this score. 31. In State of Maharashtra v. Annappa Bandu Davatage, AIR 1979 SC 1410 , it was held that before a Court can act on circumstantial evidence the circumstances proved must be complete and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused. It was further held that where there was sufficient interval between the death of the boy and the recovery of the boy and the recovery of the body, the link in the chain of the circumstantial evidence does not appear to be fully complete. In these circumstances, the accused is entitled to benefit of doubt. 32. In this case also, Jagdish was allegedly, forcibly taken away in the vehicle by the accused in the evening of 27.4.1992. His dead body was lying by the road side after about 15 hours of the incident. As is the argument from the side of the appellants, Jagdish might have been dropped at the place alive by the accused at the place of occurrence or anywhere else and he might have been run over by any vehicle as is most likely as per the evidence of PW 19 Hanuman Singh as well, or any body else might have caused the fatal injury to the deceased. In these circumstances, as is contended by the learned Public Prosecutor and is also borne out of the prosecution evidence discussed hereinbefore, the mere circumstance of forcibly taking away Jagdish in the vehicle of the accused and, after a lapse of about 15 hours, his dead body having been found near the crossing of village Depalsar, does not lead to the conclusion that the accused persons had themselves committed murder of Jagdish and, if so, they had no common intention to commit murder and in prosecution of the same common intention and in furtherance of such an intention either of the accused caused fatal injury on the head of the accused, resulting suddenly when Jagdish was dropped at the turn of village Sheopura before he could return to his home village. Accused were insistent throughout for the realisation of the taxi fare and they did not intend to or had any evil design to otherwise cause any harm to Jagdish. They did not have any animosity or an ulterior motive to otherwise abduct and harm Jagdish. Had Sunder Lal and Gordhan really apprehended any danger to Jagdish, they could not have remained silent to the occurrence. Besides, they did not report the matter to police befrore 11.30 a.m. on 28.4.1992. Gordhan was closed relation of Jagdish. Jagdish along with his mother PW 9 Mst. Kalia was residing with Gordhan. That being so, Gordhan must have been very much conscious about the welfare of Jagdish in case he was threatened to be killed while he was taken away in the taxi by the accused persons. This conduct of Gordhan is far from being natural and reliable to hold that accused persons did actually advance any threat to the life and limb of Jagdish at the time of his alleged abduction by putting him forcibly him into the taxi. 33. This conclusion is fortified from the fact that the learned Sessions Judge also while holding the accused persons guilty of commission of an offence punishable 364, Indian Penal Code, entertained a reasonable doubt about the accused being perpetrators of offence of murder of Jagdish. 34. 33. This conclusion is fortified from the fact that the learned Sessions Judge also while holding the accused persons guilty of commission of an offence punishable 364, Indian Penal Code, entertained a reasonable doubt about the accused being perpetrators of offence of murder of Jagdish. 34. Therefore, on the basis of facts and circumstances summed up above, it cannot be held that the prosecution has succeeded to prove beyond reasonable manner of doubt that Jagdish was abducted by the accused persons, in order that he may be murdered or may be so disposed of as to put him in danger of being murdered. To establish an offence under this section, it must be proved that the accused had the intention at the time of abduction that Jagdish so abducted will be murdered or so disposed of as to be put in danger of being murdered. No evidence is available on this score and hence the accused persons cannot be held liable for commission of an offence punishable Under Section 364, Indian Penal Code. 35. However, on the basis of evidence of PW 12 Sunder Lal and PW 14 Gordhan, as corroborated by Ex. P/17 FIR, the prosecution has proved beyond reasonable manner of doubt that the accused persons did wrongfully confine Jagdish by forcibly putting him into their taxi-van when the former failed to satisfy their demand of a petty taxi fare which Jagdish was not in a position to fulfil. They departed from there in the taxi along with Jagdish who was forcibly seated in the same. This act of the accused fell within the definition of Section 340, Indian Penal Code. Besides, the purpose of such confinement being forcible extortion of petty amount of taxi fare from Jagdish, as demanded by the accused, the laters' act is fully covered by Section 348, Indian Penal Code and is punishable as such. Though accused were not formally charged with this offence, this offence is a minor and almost all requisites are fulfilled by their having been charged with the commission of offence Under section 364, Indian Penal Code. So it causes no prejudice to the accused appellants. 36. Though accused were not formally charged with this offence, this offence is a minor and almost all requisites are fulfilled by their having been charged with the commission of offence Under section 364, Indian Penal Code. So it causes no prejudice to the accused appellants. 36. In the result, on the basis of evidence discussed hereinbefore and the duty of Court being to shift truth from the evidence on record, accused-appellants deserve to be acquitted of the offence punishable Under Section 364, Indian Penal Code and instead they are proved to be guilty of commission of an offence punishable Under Section 348, Indian Penal Code. 37. The Hon'ble Supreme Court has held in State of U.P. v. Anil Singh, 1989 Cr.L.R. (S.C.) 49 as follows: "It is also our experience that invariable the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out of the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is an important as the other. Both are public duties which the Judge his to perform." Therefore, this appeal is partly allowed to the extent that the accused-appellants deserve to be acquitted of offence punishable Under Section 364, Indian Penal Code and instead they are liable to be punishable Under Section 348, Indian Penal Code. ORDERThis appeal is partly accepted. Impugned judgment of conviction and sentence awarded to the accused-appellants Under Section 364, Indian Penal Code, is set aside and they are acquitted of this charge. Instead accused-appellants are convicted Under Section 348, Indian Penal Code and each of them is sentenced to undergo 3 years' R.I. and a fine of Rs. 10,000/- in default of payment of fine, to undergo further R.I. of 9 months. In case of realisation of amount of fine, a sum of Rs. Instead accused-appellants are convicted Under Section 348, Indian Penal Code and each of them is sentenced to undergo 3 years' R.I. and a fine of Rs. 10,000/- in default of payment of fine, to undergo further R.I. of 9 months. In case of realisation of amount of fine, a sum of Rs. 15,000/- is to be paid to Smt. Kalia PW 9 as compensation. Accused-appellants are in jail and hence, after adjustment of sentence undergone, forthwith in case no longer required in any other case.Appeal Partly Allowed. *******