JUDGMENT 1. - Being aggrieved by the judgment and order of conviction passed by the learned Sessions Judge, Banswara in sessions case No. 84/92 convicting the accused appellants under Section 302 I.P.C. and sentenced them to suffer life imprisonment and a fine of Rs. 1000/- in default of payment of fine to further undergo R.I. for three months, the appellants preferred these two appeals one filed through jail and another by advocate. They can conveniently be disposed of by this common order. 2. The prosecution story stated briefly is that one Punam along with one Jassi daughter of Madhu came to Banswara In Rajasthan from Ahmedabad in Gujarat to seek employment as labour and Punam was murdered by the accused persons and a report to that effect was lodged by the accused Mangilal himself on 13.3.90 in which, it was stated that deceased Punam along with one Jassi had come to Banswara 20 days prior to Navratri in that year and two days prior to Dashera and accused persons killed Punam. It is stated in the first information report that Punam was assaulted by the accused with a knife in the stomach and on the neck 3-4 times and the dead body was thrown into the lake. 3. Investigation was therefore, taken up and dead body of Punam was recovered from the lake and consequently, the accused persons were prosecuted for the offence under Section 302 of the Indian Penal Code. The prosecution examined as many as 19 witnesses in support to its case that the murder was committed by the accused persons. With the assistance of the learned counsel for the appellants and the learned Public Prosecutor, we have re-appreciated the evidence on record and scrutinised the documents on record. It is observed on re-appreciation of evidence that the prosecution has miserably failed to prove the guilt of the accused persons and the order of conviction for the reasons to follow is unsustainable in law. 4. PW. 1 Gautam, RW. 3 Narji, PW. 4 Vasta, P.W. 5 Kamji and P.W. 16 have turned hostile and have been cross-examined by the prosecution. Their testimony is worthless. They were examined to prove that the accused persons were seen with the deceased prior to the death. 4. PW. 1 Gautam, RW. 3 Narji, PW. 4 Vasta, P.W. 5 Kamji and P.W. 16 have turned hostile and have been cross-examined by the prosecution. Their testimony is worthless. They were examined to prove that the accused persons were seen with the deceased prior to the death. However, the prosecution has failed to prove the cause of death and the time of death and consequently even if all these witnesses were to state on oath that they had seen the accused with the deceased together on a date fixed, the evidence could not connect the accused with the death. In fact, the prosecution has failed to prove that the death was homicidal in nature. 5. P.W. 11 Dr. Shekhawat is the person who conducted the post-mortem. He states as under : " gfM~M;ksa ds vo'ks"k ds vk/kkj ij gekjh ;g jk; Fkh fd ;g gfM~M;kWa djhcu 18&20 lky ds iq:"k dh Fkha ftldh yEckbZ vUnktu 68 ls 72 bap jgh gksxhA e`R;q dk dkj.k crkuk lEHko ugha gqvkA e`R;q dk le; ml fnu ls dqN eghuksa dk gks ldrk gS fQj dgk iwoZ dk gks ldrk gSA " In cross-examination, he states that: " gfM~M;ksa ds vo'ks"k ij pksV dk dksbZ fu'kku ugha ik;k x;kA " 6. If the time of death is few months prior to the date of post-mortem ) i.e., 13.3.90, the death may have occurred somewhere in January, 1990. The 1st information report is lodged on 13.3.90 and the death was allegedly I Caused around Dashera which in the year 1990 was in the month of October. According to the first information report, therefore, the death was caused five months prior and the Doctor states that it had occurred some months prior. There is thus, no, connection between two statements. Apart from that in view of the statement that there was no possibility of stating the cause of death, no conclusion can be arrived that the death was homicidal. In the absence of any such conclusion that the death was homicidal, conviction under Section 302 of the Indian Penal Code for murder is improper. 7. The learned Judge has relied on the evidence of recovery of the skeleton at the instance of the accused, recovery of the clothes and shoes at the instance of the accused and the recovery of the knife. 7. The learned Judge has relied on the evidence of recovery of the skeleton at the instance of the accused, recovery of the clothes and shoes at the instance of the accused and the recovery of the knife. P.W. 2 Khatu is the person in vitae presence, the recovery of knife was made but he states in his cross-examination that the knife was not recovered by the accused in his presence and after the recovery as alleged, it was not sealed in his presence. The recovery is thus, inconsequential. 8. Even if the recovery of the skeleton and the clothes at the instance of the accused is accepted, what is proved by the prosecution is that the dead body was recovered at the instance of the accused. It does not and cannot mean that the death was caused by the accused particularly when the Doctor who conducted the postmortem was of the opinion that the cause of death cannot be ascertained. It will be pertinent to note that the first information report itself is a statement made by the accused to the Police Officer and therefore, everything stated in that report pertaining to accused committing the murder, is liable to be excluded from consideration. The recovery of the skeleton and clothes at the instance of the accused even if is accepted in toto, unless it is established that the death of the person whose skeleton found and recovered was homicidal, conviction under Section 302 is impermissible. Viewed from any point, therefore, the order of conviction is unsustainable in law. 9. The remaining evidence pertains to Police Constables who recorded the complaint regarding missing persons i.e. deceased and Jassi and investigation was conducted by them in relation to the missing persons. The Station House Officer has been examined to prove the statement made before him as also the investigation made by him. The entire evidence therefore, has failed to prove the guilt of the accused under Section 302 of the Indian Penal Code. We are unable to accept the order of conviction on any of the ground mentioned therein. As discussed above, the evidence is grossly insufficient to warrant the conviction as there is basic failure on the part of the prosecution to prove that the death was homicidal in nature. We are unable to accept the order of conviction on any of the ground mentioned therein. As discussed above, the evidence is grossly insufficient to warrant the conviction as there is basic failure on the part of the prosecution to prove that the death was homicidal in nature. It is essential requirement of law that homicidal death is caused when it will amount to murder if no exception exists. If the death of Punam in this case is not proved to be homicidal, it cannot be said that the accused committed the murder. 10. In the result, the appeals succeed and are allowed. The impugned judgment dated 22.5.93 passed by the learned Sessions Judge, Banswara is set-aside. The accused appellants Mangilal and Roopa are acquitted of the offence under Section 302, I.P.C. They are on bail, their bail bonds are cancelled.Appeal allowed. *******