Judgment ( 1. ) FEELING aggrieved by the judgment of conviction dated 25th July, 1990 passed by IInd Additional Sessions Judge, Hoshangabad in Sessions Trial No. 155/86 by which the appellants have been convicted of the offence punishable under Section 302/34, IPC and sentenced to suffer life imprisonment, they have filed the present appeal. ( 2. ) SIX accused persons were tried for the offence punishable under section 302/34, IPC, Pillu alias Rajendra and Chaheti Bai have been acquitted by the learned Trial Judge and four accused persons, who are appellants, have been convicted by the impugned judgment. ( 3. ) IN brief the case of prosecution is that on 2-2-1986 almost an hour or so before noon, Ram Singh (hereinafter referred to as the deceased)was going from the Village Phephartal to Village Chichli. Near the culvert of a canal, accused Akhayram, Jagannath, Raman and Nabba stopped him. It is alleged that accused Nabba gave a ballam blow which pierced from his back and came out through the abdomen. Thereafter, the accused persons threw the deceased in the canal and fled. The deceased came out from the canal and fell down near the culvert. ( 4. ) ONE Kirat Singh of Village Repura saw the deceased and went to Village Chichli and narrated the incident. Thereafter, Ganpat went to Babai police Station and informed the police regarding the incident. On receiving the information the Station House Incharge, R. C. Mahore, proceeded to the spot and enquired from the deceased about the incident and reduced the report in writing in the shape of dehati Nalishi (Ex. P-12 ). The Tehsildar (Executive Magistrate) recorded the dying declaration of the deceased on the spot. The deceased was brought to the local hospital from where he was sent to the District Hospital, Hoshangabad, where he died after 12 -13 days. ( 5. ) THE police, after investigation, filed the charge- sheet against six accused persons in the Committal Court which committed the case to the court of Session. ( 6. ) THE accused/appellant, Nabba, was charged under Sections 302 and 341, IPC, accused Jagannath, Raman and Akhayram were charged under section 302,149 and 341, IPC and accused Pillu alias Rajendra and Chaheti bai were charged under Section 302 and Section 149, IPC. The defence of the accused persons was one of alibi. ( 6. ) THE accused/appellant, Nabba, was charged under Sections 302 and 341, IPC, accused Jagannath, Raman and Akhayram were charged under section 302,149 and 341, IPC and accused Pillu alias Rajendra and Chaheti bai were charged under Section 302 and Section 149, IPC. The defence of the accused persons was one of alibi. According to the accused Jagannath, Nabba and Akhayram, they were in the Village Gondalbada. According to the accused raman Kumar, he was in village Semari Harchand. In their defence, the accused persons have examined Aman Singh, Kotwar of the Village Gondalbada (D. W. 1), Jawaharlal (D. W. 2) and Kishorilal (D. W. 3 ). These witnesses have stated that on the relevant date (2-2-1986), the accused persons were in their village. ( 7. ) SO as to bring home the charges, the prosecution examined as many as 13 witnesses and have placed Ex. P-l to Ex. P-15, the documents, on record. ( 8. ) KIRAT Singh (P. W. 1), has stated that he never saw the deceased in an injured condition. This witness was declared hostile. Mohanlal (P. W. 2)is the witness before whom blood stained earth and ordinary earth were seized vide seizure memo (Ex. P-l ). The police seized the wooden part of the Ballam, in presence of this witness, vide seizure memo (Ex. P-2 ). In cross-examination, this witness has stated that he is the Kotwar of Village Chichli. He came along with Station House Incharge at the spot. He has further deposed that Station house Officer of Police Station Babai arrived on the spot in a Jeep. He was picked up from Village Sirali, by the police and thereafter he went to the spot in a Jeep with Station House Incharge. From the spot the deceased was carried straight to the hospital on a cot. Four persons were lifting the cot. In the hospital, the wooden part of the Ballam was chopped off from the body of the deceased. ( 9. ) THE Station Officer Incharge, came later on, to the hospital in a jeep and till then, the deceased was in his senses. Kirat Singh (P. W. 3) s/o khemchandra is the witness who first saw the deceased in injured condition. It is in his testimony that a Ballam was pierced in his back and had come out through his abdomen. Kirat Singh (P. W. 3) s/o khemchandra is the witness who first saw the deceased in injured condition. It is in his testimony that a Ballam was pierced in his back and had come out through his abdomen. The deceased asked him to inform the incident to Komal singh and accordingly he informed Komal Singh about the incident and thereafter, he went to Babai. In cross-examination, he has stated that the deceased did not disclose who had inflicted Ballam blow to him. According to ganpat (P. W. 4), when he was opening his shop in the morning, Kanshiram informed him that somebody has inflicted Ballam blow to the deceased who is his brother-in-law and the deceased was lying near the culvert of the canal. This witness, thereafter, requested one Shiv Narain to make arrangement of a taxi which was arranged by him and in the said taxi, he came to the police station and narrated the incident to the police. The police party went to the spot along with the witness and found that a Ballam was pierced from the back of the deceased and it was coming out from the abdomen region of the deceased. The deceased, thereafter, was sent to the hospital. In cross-examination this witness has stated that the deceased was sent to the hospital on a cot and he remained in the Jeep. ( 10. ) SHANKARLAL (P. W. 5) is the witness to the panchanama of the dead-body of the deceased. According to this witness, the Station House incharge of Police Station, Babai called him at Babai Hospital, where he found the dead-body of the deceased. The Panchanama (Ex. P-3) was got prepared and his signature was obtained on it. In cross-examination, this witness has stated that he came to Babai Hospital but the Panchanama of the dead-body was signed by him at Hoshangabad Hospital. Ram Singh (P. W. 6) is another witness of the Panchanama (Ex. P-3) of the dead-body. T. K. Singh (P. W. 7) is a formal witness. ( 11. ) DR. N. Hasan (P. W. 8) is the Autopsy Surgeon. He performed the post-mortem on 15-2-1986. The injuries which were found by him on the dead-body are referred to in his report (Ex. P-5 ). According to this witness, the deceased died due to injuries on the vital organs, lung, pleura, diaphragm, stomach and large intestine with septiceamia. ) DR. N. Hasan (P. W. 8) is the Autopsy Surgeon. He performed the post-mortem on 15-2-1986. The injuries which were found by him on the dead-body are referred to in his report (Ex. P-5 ). According to this witness, the deceased died due to injuries on the vital organs, lung, pleura, diaphragm, stomach and large intestine with septiceamia. Nanhelal (P. W. 9) is the Kotwar. He is a witness of seizure of the ballam and wearing apparel of the deceased. Seizure memo is Ex. P-6 which bears his signatures. ( 12. ) DR. O. P. Bhardwaj (P. W. 10) is the witness who on the relevant date (2-2-1986) was serving in the Babai Hospital. He has stated that deceased was brought in injured condition, and his condition was found to be serious, therefore, he was sent to the District Hospital, Hoshangabad. In cross-examination this witness has revealed that the dying declaration of the deceased was recorded by the Tehsildar in Village Chichli and not in the hospital. Document (Ex. P-8) written by this witness was confronted to him. After perusing the document he has stated that he can not say that the dying declaration was recorded before him or not. ( 13. ) RAMGOPAL Yadav (P. W. 11) who prepared the spot map (Ex. P-9 ). Madanlal Kaurav (P. W. 12) is the Tehsildar who recorded the dying declaration of the deceased. It is evident from his version that the police sent information to him to record the dying declaration of the deceased in Village chichli and thereafter, he came to the Village Chichli and found the deceased lying in an injured condition inside the canal. Thereafter, he recorded the dying declaration which is Ex. P-10. It is in his deposition that when he was recording the dying declaration, the doctor came and certified the condition of the deceased. ( 14. ) THE learned Trial Judge after going through the evidence, acquitted accused persons Pillu and Chaheti Bai, convicted the appellants under section 302/34 of the IPC and sentenced them to undergo life imprisonment. ( 15. ) WE have heard Shri Shashank Verma and Shri L. N. Sakle, learned Counsel for the appellants and Shri A. K. Mishra, learned Dy. Advocate General for the State. ( 16. ( 15. ) WE have heard Shri Shashank Verma and Shri L. N. Sakle, learned Counsel for the appellants and Shri A. K. Mishra, learned Dy. Advocate General for the State. ( 16. ) IT has been putforth by Shri Shashank Verma, learned Counsel for the appellant that if the entire story of the prosecution is taken into consideration, a doubt is created and if that be the position then the benefit of doubt should be given to the accused and the judgment of conviction can not be sustained. On the contrary, Shri A. K. Mishra, learned Deputy Advocate general, for the State argued that there is no infirmity in the judgment and the appeal deserves to be dismissed. ( 17. ) AFTER hearing learned Counsel for the parties, we are of the considered view that it is appropriate in the present case to extend accused persons the benefit of doubt for the following reasons:- (i) Ex. P-10 is the dying declaration recorded at 12. 30 noon by the Tehsildar at the Village Chichli. The dying declaration has been certified by the Doctor, O. P. Bhardwaj (P. W. 10 ). Tehsildar, Madanlal Kaurav (P. W. 12) in Para 3 of his statement has stated that while he was recording the dying declaration (Ex. P-10) at that juncture, doctor arrived and certified the condition of the deceased. However, Doctor O. P. Bhardwaj after perusing and going through the document (Ex. P-8) which is the injury report, has stated that he can not say that the dying declaration was recorded before him or not. (ii) In the dying declaration (Ex. P-10) it has been written that after causing injury by ballam, the deceased was thrown in the canal. The Tehsildar in Para 12 has stated that he did not collect any information from the deceased that he was thrown in the canal by the accused persons from the culvert. This statement is inconsistent with the dying declaration (Ex. P-10) in which it has been recorded that deceased was thrown in the canal. The Tehsildar in Para 12 has stated that he did not collect any information from the deceased that he was thrown in the canal by the accused persons from the culvert. This statement is inconsistent with the dying declaration (Ex. P-10) in which it has been recorded that deceased was thrown in the canal. (iii) In Para 5, the Tehsildar (P. W. 12) has stated that upon information in writing received by him, he went to the spot chichli on his motor-cycle accompanied by his peon, on the other hand the investigating officer, Ramesh Chandra Mahore (P. W. 13), in Para 8, has stated that he brought the Tehsildar to the spot that in his Jeep. (iv) The Tehsildar in Para 2 of his testimony has said that the deceased was lying in the canal and thereafter in his presence, he came out, and his dying declaration was recorded. On the other hand Kirat Singh (P. W. 3) has stated that deceased was sitting on the culvert. (v) Mohanlal (P. W. 2), is the witness who came along with the station Officer Incharge from Babai Police Station to the spot and remained present on the spot till the deceased was sent to the hospital. But, this witness has not stated that dying declaration was recorded do the spot. In cross-examination, he has stated that he came along with police inspector from police station in a jeep, the police recovered the blood stained earth and ordinary earth before him, the deceased was lying in injured condition, thereafter, the deceased was sent to the hospital on a cot and the Police Inspector went in the Jeep. The prosecution has examined this witness so as to prove the investigation in respect to the seizure of blood stained earth and ordinary earth etc. , the deceased was sent to the hospital in presence of this witness, meaning thereby, till the deceased was sent to the hospital, this witness was present on the spot, but, surprisingly this witness has not stated that dying declaration was recorded on the spot. On the other hand he has specifically stated *** (vi) Kirat Singh (P. W. 3) is the witness to whom the deceased narrated the incident and requested him to inform Komal Singh in the village. In cross-examination he has stated that the deceased did not state who had caused the injury to him. On the other hand he has specifically stated *** (vi) Kirat Singh (P. W. 3) is the witness to whom the deceased narrated the incident and requested him to inform Komal Singh in the village. In cross-examination he has stated that the deceased did not state who had caused the injury to him. The statement of this witness is unnatural and assaults the prudence and common experience to repose faith in his testimony. (vii) Shankarlal (P. W. 5) is the witness of Panchanama of the dead-body of the deceased. According to him, at Babai Hospital the Panchanama of the dead-body was prepared, but in the cross-examination, he has stated that information was received by him in the Village Malanbada from where he went to Babai hospital. His signature was obtained on the Panchanama (Ex. P-3) at Hoshangabad hospital. ( 18. ) ON the basis of the circumstances mentioned herein above, a doubt is created in our mind. There are material contradictions in the prosecution evidence, which we have enumerated hereinabove, we are inclined to think that they go to the root matter. Thus, we have no hesitation to hold that the appellants/accused are entitled to the benefit of doubt. Needless to say, suspicion, against the accused, however, grave it may be, can not take the place of truth. The Supreme Court in the case of Varkey Joseph Vs. State of Kerala, air 1993 SC 1892 in Para 12 has held as under :- "12. Suspicion is not the substitute, for proof. There is a long distance between may be true and must be true and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. " ( 19. ) IN a criminal trial, an accused is presumed to be innocent until the contrary is proved except in cases in which the burden is cast on the accused by law. Otherwise the burden of proving the offence in all its ingredients against him beyond reasonable doubt, rests on the prosecution. " ( 19. ) IN a criminal trial, an accused is presumed to be innocent until the contrary is proved except in cases in which the burden is cast on the accused by law. Otherwise the burden of proving the offence in all its ingredients against him beyond reasonable doubt, rests on the prosecution. Therefore, where the proof by the prosecution is not of the requisite standard and there is a penetrating touching state of may be guilty, the accused, as of right, is entitled to an acquittal. In this context we may refer to the decision of the supreme Court in the case of Himachal Pradesh Administration Vs. Omprakash, AIR 1972 SC 975 , in which Their Lordships have held that the benefit of doubt, which the accused is entitled, is reasonable doubt, the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind. The Apex Court in another case khem Karan and others Vs. The State of U. P. and another, AIR 1974 SC 1567 , has held that neither mere possibilities nor remote probabilities nor mere doubts, which are not reasonable, can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. It has to be remembered that the phrase benefit of doubt is to be used only when there is some evidence towards the proof of the charge but a reasonable doubt lurks in the mind regarding its worth for being accepted as the foundation for the conclusion of the guilt. ( 20. ) THUS the interference is that the phrase the benefit of doubt is misleading. The accused does not receive a benefit, nor does humanity grant him some boon dictated by the instinct of mercy in opposition to the ends of justice. Where there is an element of genuine doubt, then and then only there must be an acquittal as a matter of right and not as a matter of grace or favour. The phrase has, therefore, to be correctly understood. In the case at hand, the circumstances enumerated above clearly create a sense of doubt which is extremely difficult to obviate. ( 21. The phrase has, therefore, to be correctly understood. In the case at hand, the circumstances enumerated above clearly create a sense of doubt which is extremely difficult to obviate. ( 21. ) IN view of our preceding analysis, we unhesitatingly hold that the accused/appellants are entitled to the benefit of doubt and the same has to be extended to them. Consequently, impugned judgment of conviction and order of sentence of the learned Trial Judge are hereby set-aside. The appeal is allowed. The accused/appellants shall be set at liberty forthwith, if not required in any other case. Criminal Appeal allowed.