UMA NATH SINGH, J. ( 1 ) THIS is an appeal from the judgment and findings recorded by the learned Sessions Judge Sidhi in the Sessions Trial No. 65/88 whereby accused/appellants were convicted for offences under Sections 302/34 and 201/34. Indian Penal Code and sentenced to life imprisonment and one year R. I. respectively. ( 2 ) DECEASED Manshah as well as both the accused persons namely Shivnath and Nanhu and the eyewitnesses of the incident resided in village Amlori. Jihiria on 21/5/1988 the date of incident. At about 8-9 in the evening of the saiddate in the presence of Kunti and Ramkhilavan wife and uncle of the deceased, the accused persons took the deceased along on a pretext to settle some accounts about Tendu Patta, although it is said that the deceased was not engaged in that business. On reaching the house of accused Shivnath, the deceased was thrashed with lathis, probably in revenge of some earlier incident of beatings of this accused. On hearing a hue and cry raised by hostile witness Suddhari (PW 2), wife of Shivnath (appellant No. 1), Hargendra Singh a neighbour reached the spot and intervened, when the deceased was under assaults while lying on a cot. Thereafter Hargendra Singh rushed to the house of the deceased and informed his wife Kunti, and other relatives namely Sita Ram, Ramkhilavan Amritlal and Tej Bali, that accused have thrashed Manshah to death and put his body on fire. Accordingly, they reached the spot of incident and found the dead body lying on a cot. However, they did not find anyone present on the spot. They kept a watch over the dead body for whole night and next day morning at Seven Oclock after covering a distance of about 18 Kms. , they reached Police Station Baidhan, where complainant Sita Ram (PW 1) lodged a report against both the accused. The Investigating Officer reached the spot, prepared inquest, collected the plain and blood stained earths and effected seizure of the weapons of offence namely lathis at the instance of both the accused from forest. The Investigating Officer sent the articles to FSL Sagar and as per report of the Chemical Examination (P /15) all the four articles were found to be stained with blood. The lathi and gainda seized at the instance of accused Shivnath were found to be stained with human blood. The Investigating Officer sent the articles to FSL Sagar and as per report of the Chemical Examination (P /15) all the four articles were found to be stained with blood. The lathi and gainda seized at the instance of accused Shivnath were found to be stained with human blood. After due investigation, a challan was laid and charges were drawn up, Both the accused denied the charges and pleaded false implications on account of enmity with Hargendra Singh. However, they did not produce any defence witness. ( 3 ) THE learned trial Judge on a careful appreciation of the evidence on records, found the complicity of both the accused established and therefore, recorded the order of convictions and sentences. ( 4 ) HEARD Shri Samir Seth, learned counsel for the appellants and Shri S. K. Rai, Panel Lawyer for the State, and perused the records. Scanning through the records it is obvious that Sita Ram (PW 1) owes the content of the FIR to Hargendra Singh Thakur, who was not examined as a prosecution witness. However, the FIR implicates both the accused by names and ascribes roles to them. As far as the statement of SUa Ram (PW 1), the author of FIR is concerned, in para 3 of his examination in-chief he stated that Kunti (PW 3) wife of the deceased informed him about going of deceased Manshah in company of both the accused to the house of Shivnath (A/i ). He further stated that after one hour. he was informed by Hargendra Singh (not examined) that Manshah was done to death. Thereafter, he along with Amrit Lal and Tej Bali rushed to the house of accused Shivnath. They saw the dead body of Manshah lying in the court-yard of the house of Shivnath (A/i ). The clothes of the dead body were burnt and accused Shivnath was still dealing lathi blows even in that position. He is candid it his statement that accused Nanhu (A/2) was not seen there, When they asked accused Shivnath as why he was thrashing the deceased, they were also threatened. Hence they ran back to their houses, but in the mid-way, they met Jhagdu and Ram Khilawan (PW 6), to whom he narrated about the incident. He is candid it his statement that accused Nanhu (A/2) was not seen there, When they asked accused Shivnath as why he was thrashing the deceased, they were also threatened. Hence they ran back to their houses, but in the mid-way, they met Jhagdu and Ram Khilawan (PW 6), to whom he narrated about the incident. They again returned to the spot of incident when Shivnath (A/i) left the spot seeing them coming to his house but another accused Nanhu (A/2) was not to be seen. He further stated that for whole night, he along with others kept a watch over the dead body and next day morning went to the police station for lodging the FIR. In his cross-examination he asserted that he saw accused Shivnath (A/i) at the spot of incident and denied that parts of his Police statement which could be said to subdue the factum of having actually seen accused Shivnath (A/i ). Another witness Suddhari (PW 2) a hostile witness and wife of accused Shivnath (All), in whose presence the deceased was allegedly caused assaults absolutely denied her police statement and no such material worth lending support to the prosecution could emerge in her cross-examination. Kunti (PW 3) appears to be firm and cogent on the circumstance of last seen by saying that her husband deceased Manshah was taken along by both the accused in the night. Though she stated to have seen accused Shivnath causing lathi blows to the deceased when he was lying on a cot in his court-yard and that his clothes were on fire but she also made a contradictory statement by saying that when she reached the house of Shivnath (A/i) along with others. Shivnath (A/i) had run away. Dr. Badri Singh (PW 4) found five external injuries and three on opening the dead body. According to him the said injuries had been caused by some blunt weapon like lathi. He also found burn injuries on the dead body. According to him injuries Nos. 1 to 4 individually and collectively were sufficient to cause death in the ordinary course of nature. In his cross-examination he substantially stood by his examination-in-chief. Ramkhilawan (PW 6) stated to have seen the accused running away with lathi from the spot of the incident on his reaching there. He did not mention the presence of Nanhu (A/2) on the spot of incident. In his cross-examination he substantially stood by his examination-in-chief. Ramkhilawan (PW 6) stated to have seen the accused running away with lathi from the spot of the incident on his reaching there. He did not mention the presence of Nanhu (A/2) on the spot of incident. In his crossexamination he reiterated to have seen accused Shivnath running from the spot. Moreover, he has clarified that on reaching the spot. he had seen Shivnath (A/i) causing two more lathi injuries even after Manshah was dead. ( 5 ) INVESTIGATING Officer. A. K. Shukla (PW 7) stated to have recorded the oral report lodged by Sitaram (PW 1) at the police station. He found the dead body of the deceased in the court-yard of accused Shivnath in lying position. There were burn marks and also marks of injuries present on the dead body. He also found the clothes of the body in burnt condition. He further stated to have seized lathis at the instance of both the accused from a forest. He also reiterated the police statement (Part TA of Ex. P 12) given by Suqdhari (PW 2), wife of accused Shivnath (A/i) which she denied in her Court Statement. In cross-examination he confirmed the seizureof lathis at the instance of both the accused from the Jhiria forest. In their Court statements under section 313, Criminal Procedure Code both the accused denied everything except their relationship interse from their wives side and the distance of their houses being 2 kms. from that of the deceased. On reappreciation of the evidence we find that the learned trial Judge has erred in discarding the evidence of Ram Khilavan (PW 6) who is not only a witness to have seen the deceased going in company of the accused but also of the facts that the dead body of the, deceased was lying on a cot in the courtyard of accused Shivnath (A/i) and that he dealt two lathi blows on the dead body and then left the spot with lathi after seeing this witness (PW 6) along with others coming to his house. Thus, the prosecution case is not only grounded on the circumstantial evidence as relied upon by the learned trial Judge, but also the substantive evidence of Ranikhilavan (PW 6 ). Thus, the prosecution case is not only grounded on the circumstantial evidence as relied upon by the learned trial Judge, but also the substantive evidence of Ranikhilavan (PW 6 ). Under the circumstances accusations levelled against accused Shivnath (A/i) are proved beyond doubt by substantive evidence of Ramkhilavan (PW 6) as also the four circumstances which are duly proved namely: (i) last seen together; (ii) recovery of the dead body from his court-yard, (iii) the weapons of offence lathi and gainda recovered at his instance were found to be stained with human blood, and (iv) the injuries found on the body of the deceased could be caused by these weapons. Further, the FIR which contains the name of accused Shivnath (A/i) with overt acts ascribed to him also lends support to the above prosecution evidence against him. ( 6 ) AS regards the second accused Nanhu (A/2), except for the fact that he accompanied deceased Manshah and accused Shivnath (All) to latters house and a lathi was recovered at his instance, there is no other incriminating circumstance duly proved to be a positive evidence for roping him in the incident. None of the eye-witnesses implicates him in clear terms and witness Ramkhilavan (PW 6) only in cross-examination says that accused Nanhu (A/2) was with Shivnath (All), but in examination-in-chief he has said nothing about this accused. Under the circumstances, the prosecution is not able to bring home the charge and prove its case up to hilt against accused Nanhu (A/2 ). ( 7 ) THUS, on a careful reappraisal of the evidence on records we find that in view of the direct evidence of Ramkhilavan (PW6) as also the other incriminating circumstances as discussed hereinabove the prosecution is able to prove its case only against accused Shivnath (A/i), therefore, this appeal qua accused Shivnath (A/i) fails and is hereby dismissed. As regards accused Nanhu (A/2), in the premises discussed hereinabove this appeal succeeds and is hereby allowed. Accordingly the order convicting accused Nanhu for offences under Sections 302/34 and 201/34, Indian Penal Code and the sentences as above, passed thereunder, are set aside and he is directed to be released forthwith, if not wanted in any other case. Appeal disposed of accordingly. .