JUDGMENT Per: Hon’ble Prafulla C. Pant, J. This Criminal Appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 29.07.1994, passed by learned Sessions Judge, Tehri, in S.T. No. 04 of 1992, whereby appellants Ravi Kewat and Vishwanath Giri have been convicted under Section 302 and under Section 302/34 of Indian Penal Code, 1860 (herein after for brevity I.P.C.) respectively and each one has been sentenced to life imprisonment. The appellants have been further convicted and sentenced to one year’s rigorous imprisonment under Section 201 I.P.C. 2. The prosecution case in brief is stated to be that on 08.09.1991 at about 6:30 P.M., children of village Sakindhar, carrying grass bundle, noticed a dead body lying in a gorge of hill and informed at GREF (Road Construction body) camp. They further informed that down the road leading from GREF camp to Saunpani, umbrella and clothes were also seen in the rocky slope of the hill. Shri Anil Kumar (P.W. 1) Rank- B&R II on the basis of the said information, went to see the site and also asked the labourer Shibbu Murmu (P.W. 7) to go into the deep gorge to identify the body who confirmed that the body was of a labour Jitan Kisku who was missing from duty since 07.09.1991. Shri Anil Kumar felt that the deceased might have slipped from the road in the night, and after leaving some labourers at the spot, informed the incident to his higher officers. He lodged First Information Report (Exh. A-1) after getting scribed by P.W. 3 Piyush Garg, at 23:30 Hrs. An entry in the General Dairy (copy of extract Exh. A-1) was made at Police Station Deoprayag regarding lodging of the aforesaid F.I.R. Thereafter Station Officer Ganesh Prasad Baunthiyal (P.W. 6), Investigating Officer along with the police force, proceeded in the night towards the place of occurrence in a Gypsy and next morning took the dead body in possession. The police got prepared inquest report (Exh. A-4) at 9:00 A.M on 09.09.1991 and diagram of dead body (Exh. A-6). Police also prepared a police form No. 33 (Exh. A-7) i.e. letter to the Chief Medical Officer, requesting for post mortem of the dead body and police form No. 13 (Exh. A-8). The police got prepared inquest report (Exh. A-4) at 9:00 A.M on 09.09.1991 and diagram of dead body (Exh. A-6). Police also prepared a police form No. 33 (Exh. A-7) i.e. letter to the Chief Medical Officer, requesting for post mortem of the dead body and police form No. 13 (Exh. A-8). The articles of the deceased namely umbrella, torch and shawl were also recovered from the site of the incident and a recovery memo (Exh. A-9) was prepared by the same above named Station Officer in the presence of witnesses, including P.W. 2 Ratan Singh. 3. Post mortem report (Exh. A-2) read with statement of P.W. 4 Dr. P.C. Aggarwal, shows that autopsy was performed on the dead body of Jitan Kisku (deceased) on 10.09.1991 at 11:30 A.M when the same was brought by constable Darshan Lal and Constable Ajendra Kumar. The Medical Officer in aforesaid report, observed that the dead body was about three days old and of a person, aged 26 years. He further observed on external examination that rigor mortis had already passed off the dead body. Maggots were present. Hair peeled out. Body was swollen. Foul smell present. Right eye-ball missing. Abdomen, penis and scortum stood distended. Skin peeled out on clearing the body. Following ante-mortem injuries was recorded by the doctor: - 1. Ligature mark horizontal on the neck. Base of the groove is reddish-anteriorly and posteriorly. On the internal examination, neck movements were found much more free-anteriorly and posteriorly, section trachea was found congested and hyoid bone fractured. Cervical first and second vertebrae were found fractured and dislocated. Carotid arteries were found lacerated and clot present in subcutaneous tissue. Brain and membranes were found congested, pleura larynx and trachea were found congested. Lungs were found congested. Right side of the heart was full white left was empty. Carotid vein and arteries lacerated. In the abdomen, gases were found present. Inside mouth, teeth were 16/16. In the stomach- 250 gm undigested food-rice and dal. Gall Bladder was found congested. Spleen-congested and bladder half full. According to the doctor, cause of death was due to asphyxia as a result of injuries sustained (strangulation). 4. The Investigating Officer on 11.09.1991, on receipt of the post mortem report, converted the case into one under section 302/201 I.P.C and made entry at S.No. 24 at 19.30 Hrs in the General Diary (Extract Exh. A-10). According to the doctor, cause of death was due to asphyxia as a result of injuries sustained (strangulation). 4. The Investigating Officer on 11.09.1991, on receipt of the post mortem report, converted the case into one under section 302/201 I.P.C and made entry at S.No. 24 at 19.30 Hrs in the General Diary (Extract Exh. A-10). He then started the investigation and visited GREF Camp, Sarnidhar and recorded the statements of witnesses – Anil Kumar(P.W.I), driver Chunni Lal and others. Apart from preparing Site plan (Exh. A-11) on 12.9.1991, he also interrogated other labourers on 13.09.1991 including Shibbu Murmu (P.W.7). On 15.09.1991 on interrogation , he learnt that labourers Ravi Kewat, Vishwanath Giri, Naneshwar, Hemraj, Rameshwar Majhi were absent from the camp since the evening of 07.09.1991. Thereafter, on 16.09.1991, he recorded statements of some more labourers available, including that of Nand Kishore, Permeshwar Majhi, Shibbu, Hemraj and Ramu Ram. To investigate the matter further, the Investigating Officer, along with the Constable Bahadur Singh in search of the suspects went to Bihar where on 23.11.1991, he apprehended appellants Ravi Kewat and Vishwanath Giri and got their statements recorded under section 164 of the Code of Criminal Procedure, 1973, before the Judicial Magistrate of Ist Class at Dumka. On completion of the investigation, the Investigating Officer, submitted chargesheet against the appellants Ravit Kewat and Vishwanath Giri before the concerned Magistrate of District- Tehri for trial who after giving necessary copies to the appellants, committed the case to the Court of Sessions. The learned Sessions Judge, Tehri on 16.04.1992 after hearing the parties framed two charges one under section 302 read with Section 34 I.P.C and another under Section 201 of I.P.C. against the both them to which both of them pleaded not guilty and claimed to be tried. 5. The prosecution got examined . P.W.1 Anil Kumar (informant), P.W.2 Ratan Singh (witness of the recovery of the dead body), P.W.3 Piyush Garg(scribe of the F.I.R), P.W. 4 Dr. P.C. Aggarwal (who performed the autopsy), P.W.5 Head constable Meharban Singh, P.W. 6 Ganesh Prasad Baunthiyal (Investigation Officer and who prepared inquest report) , P.W. 7 Shibbu Murmu(eye witness) and P.W. 8 Muni Lal Kewat (before whom extra judicial confession made). In the form of documentry evidence, apart from F.I.R( Exh. A-1), post mortem report (Exh. A-2), General Diary (Extract Exh. A-3), inquest report (Exh. In the form of documentry evidence, apart from F.I.R( Exh. A-1), post mortem report (Exh. A-2), General Diary (Extract Exh. A-3), inquest report (Exh. A-4), sample of seal (Exh.A-5), diagram of dead body (Exh. A-6), letter addresed to C.M.O for post mortem examination of dead body (Exh. A-7), challan of dead body (Exh. A-8 ), memorandum of seizure of disjecta (Exh. A-9), copy of the extract of General Diary regarding registration of crime (Exh. A-10), Site plan (Exh. A-11) and materials – shawl, plastic torch, umbrella and pair of slippers of the deceased as Exhibits 1 to 4 were produced. The evidence was put to the accused under Section 313 of the Code of Criminal Procedure, 1973, to which the appellants stated that the evidence adduced against them was false. Learned Sessions Judge after hearing the parties and going through the evidence on record found the charges proved against the appellants on which he convicted them under both the charges and sentenced as mentioned earlier. Aggrieved by which appellants have preferred this appeal. 5. We have learned Counsel for the appellants and learned Assistant Govt. Advocate and perused the entire evidence on record. 6. P.W. 1 Anil Kumar has stated that on 07.09.1991, Jitan Kisku (deceased) had to report for the night duty but he did not come. Next day in the evenng at 6:30 P.M. he was informed that a dead body of some person was lying in a gorge. He went there and asked labour Shibbu Murmu to go in the deep gorge and see the dead body who identified the body of Jitan Kisku (deceased). The witness states thereafter that he got scribed FIR (Exh. A-1) by Piyush Garg and informed the police. In the cross examination, this witness has stated that he personally knows both of the appellants who were labourers in the GREF camp. P.W. 2 Ratan Singh has stated that the small children of Saknidhar, informed about some clothes, umbrella etc also lying below the road. This witness has stated that next day of said information when the police came, the dead body was taken by police and inquest report was prepared. P.W. 3 Piyush Garg is formal witness who has only proved F.I.R. (Exh. A-1). This witness has stated that next day of said information when the police came, the dead body was taken by police and inquest report was prepared. P.W. 3 Piyush Garg is formal witness who has only proved F.I.R. (Exh. A-1). This witness in his cross examination has stated that the dead body which was lying about 200-250 feet down the hill from the road was identified by Shibbu Murmu who told that the dead body was that of Jitan Kisku. Further in the cross examination, he has stated that police came in the night and guarded the dead body and on the next morning only the dead body was taken out. The witness in his cross examination further discloses that after the incident, Naneshwar left the camp and thereafter appellants Ravi Kewat and Vishwanath Giri also left the camp. 7. P.W. 7 Shibbu Murmu while narrating the prosecution story, stated that on 06.09.1991, the labourers received their wages and went for gambling. He further states that he was there along with Jitan Kisku (deceased) and appellants Vishwanath Giri and Ram Kewat. He also disclosed that Jitian Kisku (deceased) won money against the appellants Ram Kewat and Vishwanath Giri. But, both the appellants asked Jitian Kisku (deceased) to return their money to which the deceased refused. Thereafter, the witness states that they came back to Saunpani camp. Next day on 07.09.1991, the witness (P.W.7 Shibbu Murmu) says that he was on duty from 6:00 P.M. for six hours whereafter Jitan Kisku had to take over from him. However, at about 11:00 P.M. in the night he heard cries of Jitan Kisku “Bachao! Bachao!”(SAVE! SAVE!). He says that he rushed to the spot along with Naneshwar and found that appellant Vishwanath Giri had caught hold of Jitan Kisku (deceased) and Ravi Kewat was strangulating him. Both of the appellants after killing him threw the deceased in a trench. This witness (P.W. 7) has further stated that the appellants threatened him and Naneshwar not to dare to disclose the incident to anyone. On this, he says he and Naneshwar fled to Bihar where before the Magistrate in Dumka he got his statement recorded after he (P.W. 7) disclosed the incident to the Investigating Officer. In cross examination, P.W. 7 Shibbu Marmu has disclosed that Ram Kewat lost Rs. 450/- to the deceased. On this, he says he and Naneshwar fled to Bihar where before the Magistrate in Dumka he got his statement recorded after he (P.W. 7) disclosed the incident to the Investigating Officer. In cross examination, P.W. 7 Shibbu Marmu has disclosed that Ram Kewat lost Rs. 450/- to the deceased. He further stated that similar amount was lost by appellant Vishwanath Giri. This witness in the cross examination further stated that every month the labourers used to go to Bungadhar for gambling after receiving their wages. He further disclosed in the cross examination that gambling started at about 9:00 or 10:00A.M. and lasted for 2½ hours. The witness in his cross examination, before the trial court has stated that after 4-5 days of the incident, he went to Bihar. 8. Shibbu Murmu (P.W. 7) evidence of whom is discussed as above, is the key witness of this case. It is necessary to examine the veracity of his statement. In the examination in chief , he states that he went for gambling along with appellants and deceased while in cross examination, he stated that he does not gamble but had gone there with his village mate. As to the hearing of the cries of the deceased, this witness states that from 100 mtrs he heard the voice “Bachao” (SAVE!) and told the court that he reached immediately at the spot along with Naneshwar. The witness in his cross examination states that after 4-5 days of the incident he fled to Bihar. It is strange that he did not disclose such a serious incident to none till the day he left the camp. As to the source of light in which he could see the presence of appellants at the place of incident, the witness states that he saw in the light of the torch and reached there after Naneshwar had already reached at the spot. Shri Naneshwar was not examined by the prosecution for best reasons known to it. He could have been best witness to corroborate what is stated by P.W. 7 Shibbu Murmu. Non-examination of Naneshwar makes the statement of P.W. 7 lame, particularly in the circumstances that Shibbu Murmu gave the statement only after two months regarding the incident. Shri Naneshwar was not examined by the prosecution for best reasons known to it. He could have been best witness to corroborate what is stated by P.W. 7 Shibbu Murmu. Non-examination of Naneshwar makes the statement of P.W. 7 lame, particularly in the circumstances that Shibbu Murmu gave the statement only after two months regarding the incident. Not only this, even the statement of the witness, recorded under Section 164 of Code of Criminal Procedure, 1973, recorded in Dumka (Bihar) appears to have not been produced before the trial court. 9. Even the medical evidence is contradictory to what the P.W. 7 Shibbu Murmu says. This witness has stated that Vishwanath Giri was holding the deceased while Ravi Kewat was throttling him. But it is no where stated if he was throttling with a rope etc. From the plain statement as given by P.W. 7, it appears that the deceased was throttled by hand by Ravi Kewat but anti-mortem injuries in Exh. A-2 shows that there was a ligature mark on the neck and that means the throttling was not done by hand. P.W. 8 Muni Lal Kewat is the person who says appellants Ravi Kewat and Vishwanath Giri confessed before him that they have killed Jitan Kisku. This witness also states that the appellants have threatened him not to disclose this fact to anyone. However, there is no explanation why the appellants would disclose the incident to Muni lal Kewat who was even threatened not to disclose the incident to others. 10. Considering all the circumstances discussed above in the case, the story as narrated by the prosecution cannot be said to have been proved beyond all reasonable doubt against appellants. As such, we are unable to agree with the finding of the learned Sessions Judge that the charges stood proved against the appellants beyond all reasonable doubt. Therefore, we feel that this is a fit case in which benefit of doubt should have been given to the appellants. We hold that charges do no stand proved beyond reasonable doubt. Accordingly the appeal deserves to be allowed and is allowed. Judgment and order dated 29.07.1994, passed by learned Sessions Judge, Tehri in S.T. No. 04 of 1992 is set aside. We hold that charges do no stand proved beyond reasonable doubt. Accordingly the appeal deserves to be allowed and is allowed. Judgment and order dated 29.07.1994, passed by learned Sessions Judge, Tehri in S.T. No. 04 of 1992 is set aside. The appellants Ravi Kewat and Vishwanath Giri are acquitted of the charge under Section 302 and 302/34 I.P.C. and also of the one under Section 201 I.P.C. The appellants if in jail be released forthwith unless they are required to be detained in connection with some other crime.