JUDGMENT 1. :- Both the appellants Umed Singh and Fool Chand were indicted before the learned Additional Sessions Judge, Kotputli, district Jaipur, in Sessions Case No. 18/92 for hating committed murder of Ram Swaroop. They were found guilty, convicted and sentenced under Section 302 of the Indian Penal Code to suffer imprisonment for life and fine of Rs. 500/-. In default to further suffer three months rigorous imprisonment, under Section 328 Indian Penal Code to suffer three years R.I. and fine of Rs. 200/-. In default, to further suffer one month's R.I. and under Section 379 Indian Penal Code to suffer one year R.I. 2. All the sentences were directed to run concurrently. 3. The synopsis of the prosecution case is this. A written report Ex.P.4 was handed over by Hanuman P.W.4 to the S.H.O., Police Station, Shahpura, stating therein that Ram Swaroop Gujar, Ramjilal Nayak, Jai Narain Nayak and Narain Nayak used to graze goats. On May 18, 1991, when all the above quoted four persons were grazing the goats, one person came to them and distributed 'laddus'. After eating the same, all the four persons became mad and that unknown person escaped with the goats. On being searched, Ramji Lal, Jai Ram and Narayan were found in a mad condition whereas dead body of Ram Swaroop in a naked condition was recovered near the bridge next day in the morning. Police Station, Shahpura, registered a case under Sections 302, 328 and 379 Indian Penal Code and investigation commenced. Autopsy on the dead body of Ram Swaroop was conducted vide Post Mortem Report Ex. P. 13 by Dr. Surendra Mohan P.W. 7, who did not cope the definite opinion about the cause of death and it was open that the opinion could only be given after receiving the chemical analysis of viscera. Investigating Officer recorded the statements of the witnesses under Section 161 Criminal Procedure Code The accused were arrested and identification parade was conducted after about 15 days of their arrest. All the accused persons were identified by the two witnesses. On completion of the investigation, charge sheet was filed. 4. In due course the case came up for trial before the learned Additional Sessions Judge, Kotputli, district Jaipur. Charges under Sections 302, 328 and 379 Indian Penal Code were framed. The accused denied charges and claimed trial. All the accused persons were identified by the two witnesses. On completion of the investigation, charge sheet was filed. 4. In due course the case came up for trial before the learned Additional Sessions Judge, Kotputli, district Jaipur. Charges under Sections 302, 328 and 379 Indian Penal Code were framed. The accused denied charges and claimed trial. The prosecution examined as many as 21 witnesses in support of its case. In the statement recorded under Section 313 Criminal Procedure Code the accused pleaded innocence. No witness was examined in defence by the accused. Learned trial Judge on hearing the final submissions, convicted and" sentenced the accused appellants as indicated here-in-above. 5. It is contended by Mr. B.S. Shekhawat and Mr. B.L. Gupta, learned Counsel appearing for the appellants that the F.S.L. report dated April 26, 1993, was taken into consideration by the learned trial Judge under the provisions contained in Section 293 Criminal Procedure Code and on the basis of the F.S.L. report, the appellants have been convicted. Our attention has been drawn towards the literature of 'DIAZEPAM' Tablet. A look at the track journal demonstrates that Diazepam is quickly absorbed, which produces a brief initial phase of strong action followed by prolonged milder effect due to a two phase plasma concentration decay cure. It is preferred in acute panic states and anxiety associated organic disease. In the F.S.L. report, the result of the examination of viscera reveals that before his death deceased had consumed diazepam drug. In the Medical Jurisprudence and Toxicology, Twenty-first Edition published in 1990, Modi, at Page 225, has given details in regard to tranquilizers. It is indicated that a large number of tranquilizers are now been used increasingly in India to relieve anxiety and mental stress or as a muscle relaxant or to reduce cough. About 100 to 300 mg. per kg. is considered a fatal dose. 6. In the instant case Dr. Surendra Mohan, P.W. 7 only deposed that the cause of death of the deceased could only be known after receiving the F.S.L. report. There is nothing on record to suggest that the death of the deceased occurred because of consumption of diazepam. It is no doubt true that diazepam was found in the viscera of the deceased but how much quantity of it was consumed by the deceased is not borne out from the record. There is nothing on record to suggest that the death of the deceased occurred because of consumption of diazepam. It is no doubt true that diazepam was found in the viscera of the deceased but how much quantity of it was consumed by the deceased is not borne out from the record. Under these circumstances, it can not be held that the death of the deceased occurred on account of consumption of diazepam tablet. 7. Now we proceed to consider the statements of witnesses examined by the prosecution. Kana Ram P.W.1, Soorja P.W.2, Kanhaiya Lal P.W. 3, Dr. Surendra Mohan, P.W.7, Ganesh P.W.8, Jagdish P.W. 14, Mahadev P.W. 16, Nathu Ram P.W. 17 have been declared hostile. Hanuman P.W.4, is the informant and he is not the eye witness of the incident. He is the father of the deceased. Prabhat is father of Ram Swaroop, who is also not eye witness. Balu Singh P.W. 6 is a Motbir of "Supardiginama". Ganesh P.W. 8 has not supported the prosecution story as he also has been declared hostile. Narayan, P.W.9 is the person who consumed Laddu. He was 14 years of age on Feb. 8, 1994, when his statement was recorded. He deposed that appellants came to him and distributed Laddus. As Laddu was sour in test, he only consumed a small quantity. Thereafter all the four became unconscious and he regained consciousness in the hospital. He further stated that the appellants were shown to him in the Police Station before conducting the identification parade. Jai Ram P.W. 10 was 18 years of age at the time of recording of his statement. He also repeated the same story which has been narrated by Narayan. In his cross-examination, he also stated that the appellants were shown to him in the Police Station. Prabhat, P.W. 11 is not the eye witness of the occurrence. Mana Ram P.W. 12 is the signatory of the site plan. Witness C.P. Singh is the learned Magistrate, who conducted the identification parade. Investigating Officer has not been examined by the prosecution. Ramji Lal, P.W. 18, the boy who consumed Laddu also repeated the same story which was narrated by the two earlier witnesses, who ate Laddus. In his cross-examination he also stated that the appellants were shown to him in the Police Station. 8. Investigating Officer has not been examined by the prosecution. Ramji Lal, P.W. 18, the boy who consumed Laddu also repeated the same story which was narrated by the two earlier witnesses, who ate Laddus. In his cross-examination he also stated that the appellants were shown to him in the Police Station. 8. We find that the conviction of the appellants is also based on their identification by the witnesses P.W. 9, P.W. 10 and P.W. 18 in the identification parade. Having scrutinised the memo of identification, we are of the view that the appellants could not have been convicted on the basis of their alleged identification before the Magistrate as they were earlier shown to the witnesses in the Police Station. 9. In view of what we have discussed here-in-above, we are of the considered opinion that the prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. The prosecution has failed to prove that the death of the deceased could occur by consuming diazepam and the appellants were the persons responsible for the death of the deceased. There is yet another weakness in the prosecution case and that is the non-production of the Investigating Officer, before the learned trial Judge. Goats were also not recovered at the instance of the appellants and thus the motive of murder is also not established. The learned trial Judge has not properly considered these infirmities of the prosecution case and committed illegality in convicting and sentencing the appellants. Under these circumstances, we have no option but to give appellants the benefit of doubt. 10. Resultantly, the appeals stand allowed. The impugned judgment of the learned trial judge is set-aside and appellants are acquitted of the charges framed under Sections 302, 379 and 328 of the Indian Penal Code They are in custody. They shall be released forthwith if not required in any other case.Appeal Allowed. *******