JUDGMENT 1. - Jayendra Singh and Pintoo @ Tejendra Singh, appellants herein, i along with co-accused Sacchidanand Singh @ Bada Thakur, Laxman Singh, Bhanwar Singh, Raghuvir Singh, Amar Singh and Ram Kishan, were put to trial before learned Additional Sessions Judge (Fast Track) Tonk. Learned Judge vide judgment dated July 3, 2002 while acquitting co-accused persons 5 convicted and sentenced the appellants under section 302 read with 34 IPC to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for six months. 2. It is the prosecution case that on October 21, 2001 informant Prahlad (Pw.1) submitted a written report (Ex.P-1) at police station Nagar 10 District Tonk stating therein that on October 20, 2001 Amar Singh had quarrel with them. Because of that quarrel, on October 21, around 8 AM while Mohan Lai, elder brother of informant, was returning to the house, Amar Singh, Laxman Singh, Chhota Sahab, Jeyendra Singh, Bhanwar Singh, Pintoo, Bhagwan Singh, Bada Thakur, Bharat Singh and Ram Kishan Daroga belaboured Mohan Lal near the fort. Amar Singh and Bhagwan Singh were armed with sword, Laxman Singh had Danda and others were having knife and Chhurri. All of them inflicted blows on the person of Mohan Lal. Hearing hue and cries of Mohan Lal the informant and his Bhabhi Mooli reached to the spot and saw assailants causing injuries to Mohan Lal, who was drenched with blood. He was immediately removed to hospital where he was declared dead. On that report a case was registered under sections 147, 148, 149, 341, 302 and 323 IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under sections 147, 148, 341 and 302 read with 149 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions while acquitting co-accused persons convicted and sentenced the appellants as indicated herein above. 3. Death of Mohan Lal was undeniably homicidal in nature. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions while acquitting co-accused persons convicted and sentenced the appellants as indicated herein above. 3. Death of Mohan Lal was undeniably homicidal in nature. As per Post Mortem Report (Ex.P-15) following ante mortem injuries were found on the dead body: 1. Incised wound cut throat wound placed on the middle part of neck at the level of thyroid cartilage horizontally placed 31/2" long 21/2 to Rt. side of the mid of thyroid cartilage & one inch to Lt. side of cartilage 1" wide at extreme Rt. end of wound & muscle deep nearing deep here but fascia deep & 0.5 cm wide on rest of 21/2 to Lt. side of wound margins are clean cut & clotted blood is present around the wound. Rt. internal juggler vein is cut transvery & anteriory 1/2 of inch at the Rt. side of wound in carotid triangle vein is cut cleanly & empty soon medial muscle fiber of steromastoid are also damaged. 2. Incised wound 1" long & 1 cm vide spl. shaped obliquely passed on the Lt. shoulder 1" above the total end of clavicle bone margins are clean cut & clotted blood present around the wound depth of wound is muscle deep. 3. Incised wound 1" long l cm wide spindle shaped muscle deep on inner side and middle position of Lt. arm margins clean cut & clotted blood is present around the wound. 4. Incised wound 4" long at medial side irregular lateral margins skin is flapped out. Sub cut at deep clotted blood is present around the wound margins are clean cut wound is placed on lower medial side of back of Lt. forearm 1" above the elbow joint. 5. Incised wound 4cm x 1cm spindle shaped. Horizontally placed just over the back of Lt. elbow margins are clean cut & clotted blood present around the wound fascia deep. 6. Incised wound 2cm x 1cm spindle shaped obliquely placed on the Rt. lower costal margin towards epigastric muscle deep margins clean cut clotted blood present around the wound. 7. Incised wound 2.5cm x 1cm spindle shaped muscle deep obliquely placed on the upper part of At. side of chest 1" above & lateral to Rt. 6. Incised wound 2cm x 1cm spindle shaped obliquely placed on the Rt. lower costal margin towards epigastric muscle deep margins clean cut clotted blood present around the wound. 7. Incised wound 2.5cm x 1cm spindle shaped muscle deep obliquely placed on the upper part of At. side of chest 1" above & lateral to Rt. nipple margins clean cut & clotted blood is present around the wound. 8. Abrasion graze in nature 2cm round superficial placed on the front of Lt. knee. In the opinion of Dr. Kailash Bihari Bhardwaj (Pw.14) the cause of death was cerebral anoxia due to excessive bleeding or hemorrhage due to injury No. 1. 4. We have given our anxious consideration to the rival submissions and with the assistance of learned counsel, gone through the evidence on record. 5. It is discerned from the testimony of informant Prahlad (Pw.1) that he did not see the incident from his eyes. His brother Ishwar came to house and informed him that Mohan Lal was killed. He then went to the spot and saw 1 Mohan Lal lying dead. Pintoo and Jayendra Singh were standing there. He then took the dead body to the police station and got the report written by a Santri (Police Constable). Except Pintoo and Jayendra, he did not name anybody in the report. Since Prahlad did not support prosecution case, he was declared hostile. Ishwar (Pw.2), Kana (Pw.3), Roop Narain (Pw.4), Ram Sahai (Pw.5), Gordhan (Pw.6), Beni Prasad (Pw.7), Mahendra Pal (Pw.8) and Bhooli (Pw.12) also failed to toe the prosecution line and they too were declared hostile. 6. Learned trial court convicted the appellants Pintoo and Jayendra Singh on the ground that they were seen standing near the dead body and the weapons used in the commission of offence were recovered on the basis of their disclosure statements. Narain Singh 10 (Pw.19) deposed that he got recovered knife and Gupti at the instance of appellants Pintoo and Jayendra Singh vide recovery memos Ex.P-16 and Ex.P-17. 7. As per FSL Report (Ex.P-29) human blood of Group 'A' was found on the knife and Gupti. 8. Having carefully considered the evidence adduced by the prosecution at the trial we find that nobody had seen the appellants inflicting blows on the person of the deceased. 7. As per FSL Report (Ex.P-29) human blood of Group 'A' was found on the knife and Gupti. 8. Having carefully considered the evidence adduced by the prosecution at the trial we find that nobody had seen the appellants inflicting blows on the person of the deceased. Informant Prahlad (Pw.1) deposed thus: " xkWao ds ikl esa tgkWa eksgu dh yk'k Fkh ogkWa x;kA eq>s ogkWa eksgu e`r feykA ogkWa eq>s fiUVw vkSj t;sUnz flag feykA " Bhooli Bai (Pw.12) in her cross examination stated: " ;g lgh gS fd eSa tc igWaqph rc esjk ifr eksgu [kwu esa yFkiFk tehu ij iM+k Fkk vkSj fiUVw o t;sUnz ogkWa ls Hkkx pqds FksA " 9. There is nothing on record to show that the appellants were armed with knife and Gupti. Therefore, the alleged recovery of weapons at their instance does not connect them with the guilt: The appellants could not be convicted merely on the basis of suspicion. Suspicion, however, strong, can not take the place of proof. Strangely in the FIR as many as eight assailants were named but at the trial six were left. 10. Proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs, BIRCH J. in R. v. Madhub (21 WR Cr. 13) indicated thus: "For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and common sense and shrewdness must be brought to bear upon the facts elicited in every case which a judge of facts in this country discharging the functions of a jury in England, has to weigh and decide." 11. Aitnougn efforts nave been made by mathematical writers to formulate rules for determining moral certainty it is obvious that no satisfactory system can be devised for weighing evidence and drawing conclusions. In Ram Chandra v. Champa Bai, AIR 1965 SC 354 the Apex court held that in order to judge the credibility of witnesses the court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses but it is open to it to look into the surrounding circumstances as well as the probabilities. 12. 12. On testing the evidence adduced at the trial by the prosecution in the instant case, in view of surrounding circumstances as well as the probabilities and from the point of view of trustworthiness we find that the charge under section 302/34 IPC could not be established against the appellants beyond reasonable doubt. 13. For these reasons, we allow the appeal and set aside the conviction of appellants under section 302/34 IPC and acquit them of the said charge. Appellants Jayendra Singh and Pintoo alias Tejendra Singh S/o Amar Singh, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other caseAppeal Allowed. *******