JUDGMENT 1. - This appeal is directed against the judgment and order of conviction passed by the learned Sessions Judge, Balotra in sessions case No. 12/93 convicting the accused under Section 302 of the Indian Penal Code and sentencing them to suffer imprisonment for life. 2. Facts giving rise to this appeal stated briefly are that : the body of Vaja Ram was hanging by the neck and as such, report was lodged in the police. The fact was noticed by accused Tiloka Ram and his father and they removed the hanging body and then lodged the first information report. Investigation was taken up on this report and accused were prosecuted for causing homicidal death of Vaja Ram. The prosecution has examined as many as 18 witnesses in support of its case and on appreciation of this evidence, the learned Judge came to the conclusion that the accused were responsible for the death of Vaja Ram and since it was homicidal death, convicted the accused of murder under Section 302 read with Section 34 of the Indian Penal Code. The accused No. 1 is son of accused No. 2, both of them have come up in this appeal. 3. Assailing the order of conviction, it has been argued on behalf of the appellants that there is no evidence on record to support the order of conviction, that none of the 18 witnesses is an eye-witness to the incident, that there is no evidence either ocular or circumstantial to connect the accused persons with the homicidal death of the deceased. In fact according to the learned counsel, it is not proved by the prosecution that the death of Vaja Ram was homicidal. Learned counsel submitted that in the absence of such finding, the conviction under Section 302/34 of the Indian Penal Code thereof is impermissible in law. 4. With the assistance of the learned counsel for the accused and the learned Public Prosecutor, we have scrutinised the record and re-appreciated the evidence on record. Taking into consideration the various submissions made, we have scrutinised the evidence, obviously, there is no eye-witness in the incident and there is no evidence of any enmity between the parties. Beyond suspicion factually there appears to be nothing on record to connect the accused to the death of Vaja Ram. 5. Taking into consideration the various submissions made, we have scrutinised the evidence, obviously, there is no eye-witness in the incident and there is no evidence of any enmity between the parties. Beyond suspicion factually there appears to be nothing on record to connect the accused to the death of Vaja Ram. 5. In order to sustain the conviction under Section 302 of the Indian Penal Code, the prosecution has to establish two things, (1) that the death complained off was homicidal in nature and (2) that it was caused by the accused persons. Unless, it is established on record by cogent evidence that the death was homicidal, there cannot be any conviction under Section 302 of the Indian Penal Code for murder as in law, every culpable homicide is murder unless accepted by the definition under Section 299 of the Indian Penal Code. 6. In the absence of any eye-witness to the death of the deceased only circumstantial evidence is possible and only circumstantial evidence of any credence to determination homicidal death is the evidence of the Doctor who conducted the post mortem, we will have to consider therefore, the report of the post mortem and the deposition of the Doctor who conducted the post mortem to ascertain with the assistance of other circumstantial evidence if any as to whether the death was homicidal in nature. 7. The Doctor who conducted the post mortem is PW. 3 Dr. Guman Singh, he states that the death was caused due to asphyxiation. His deposition needs verbatim consideration, " esjh jk; esa mldh e`R;q dk dkj.k gsfxax dh otg ls 'okl vo:) gksuk Fkk eSaus bldh iksLVekVZe fjiksVZ cukbZ tks izn'kZ ih&4 gSa] ftl ij esjs gLrk{kj , ls ch gSA esjh jk; esa diM+s ls nks O;fDr;ksa }kjk xyk ?kksaVus dk iz;kl djus ij e`R;q gks ldrh gS ysfdu rc rtkjke ds rks lh&2 vkSj lh&3 ds fMLd dk izksysIl Fkk oSlk izksysIl ugha gksrk D;ksafd lh&2] lh&3 ds dh fMLd dk izksysIl QkWalh yxkdj yVdus ls 'kjhj ds out dh otg ls gh gksrk gS vU;Fkk ugha gks ldrkA vxj nks O;fDr mldh diM+s ls xyk ?kksaVus dh dksf'k'k djrs rks Vs~fd;k dk QzsDpj gksrk gS vkSj Fkk;jkbZM dkfVZyst vkSj Mk;M cksu ds Hkh QszDpj gks tkrsA " 8. The Doctor has thus opined in unequivocally terms that the death was suicidal in nature. The Doctor has thus opined in unequivocally terms that the death was suicidal in nature. The only thing in our opinion which can be successfully pleaded for contradicting this opinion is opinion of another expert or ocular evidence of persons seeing the deceased be strangulated by some human being neither there is an expert opinion to contradict P.W. 3 nor there is any eye-witness account of such homicidal strangulation of the deceased. In our opinion, therefore, in the face of such evidence, no conviction under Section 302 of the Indian Penal Code is possible. 9. Even if we note the other evidence as recorded by the learned Sessions Judge, we find that two of the witnesses were claimed to be eye-witnesses have been declared hostile. All other witnesses have seen the body lying dead on a bed and not hanging by neck, their evidence relates to the discovery of the body and things that happened subsequent thereto, even the evidence and relation to the possible motive is also useless, even if it is accepted, it does not lead to conclusion that there was any cause for accused to commit murder of the deceased. We therefore, do not see any reason for further dilating on this evidence. In our opinion, there is a failure on the part of the prosecution to prove homicidal death and conviction under Section 302 I.PC. is impermissible. In the present case, death of Vaja Ram is proved to be suicidal and therefore, the accused persons cannot be held guilty of murder. 10. In the result, the appeal succeeds and is allowed. The judgment and order of conviction and sentence is set-aside. One accused is already on bail, his bail bond shall stands cancelled. The other accused be released immediately, if not required for any other offence.Appeal Allowed-Accused Acquitted. *******