J.P. Singh, J. 1. The appellants, Vinod Kumar alias Jumbu and Susheel Kumar alias Manka, have questioned their conviction under Section 302/34 RPC and the sentence of imprisonment for life and fine of Rs.5000/- each recorded by the 2nd Additional Sessions Judge, Jammu vide his Judgment of April 30, 2009 and Order of May 01, 2009, by their Criminal Appeal No. 29/2009. 2. The facts necessary for disposal of the Appeal and the confirmation Reference for confirmation of the appellants’ sentence of life imprisonment, made by the 2nd Additional Sessions Judge, Jammu, "the trial Court", for short, may be summarized thus:- There was enmity between the appellants’ father and the father of Ravinder Kumar-deceased, which had resulted in the filing of a Criminal Case against the appellants’ father, who was alleged to have caused injuries to the father of the deceased. The father of the appellants was, however, acquitted in the case by the 2nd Additional Sessions Judge, Jammu on 16.10.2001. It was pursuant to the above referred old enmity between the parents of the appellants and the deceased that on 11.05.2006, appellant-Vinod Kumar is stated to have taken Ravinder Kumar-deceased along, for participation in the Dinner in connection with the marriage of Harbans Lal’s Son which had been arranged at Saryara Sabha Press Morh, Bahu Fort, Jammu. Appellant-Vinod Kumar, Ravinder Kumar-deceased and one Bodh Raj who joined them on their way, consumed liquor in the nearby Dhaba of Balwant Raj. After taking liquor, Bodh Raj went his own way whereas the duo proceeded towards the Saryara Sabha to participate in the Marriage Dinner. Ravinder Kumar-deceased, consumed more liquor, which he was carrying with him in a pouch, in the marriage party and became un-conscious. Vinod Kumar, lifted him with the help of his brother Susheel Kumar and both of them took him towards the bathroom. The appellants are stated to have hit the deceased with a stone near the bathroom till he was dead. The case was initially investigated by Police Station Bagh-e-Bahu, Jammu pursuant to the registration of FIR No. 21/06 under Section 302 RPC in this behalf whereafter the investigation was completed by the Crime Branch Police Station, Jammu, which filed the Final Police Report against the appellants for committing the Murder of Ravinder Kumar because of the old enmity. The case was initially investigated by Police Station Bagh-e-Bahu, Jammu pursuant to the registration of FIR No. 21/06 under Section 302 RPC in this behalf whereafter the investigation was completed by the Crime Branch Police Station, Jammu, which filed the Final Police Report against the appellants for committing the Murder of Ravinder Kumar because of the old enmity. Learned Judicial Magistrate, Ist Class, (Ist Additional Munsiff), Jammu, committed the case to the learned Sessions Judge, Jammu, who transferred it for disposal to the 2nd Additional Sessions Judge, Jammu, the trial Court. Finding a prima facie case against the appellants, they were charged under Section 302/34 RPC to which they pleaded `Not Guilty’ and claimed to be tried. To sustain the Charge, the prosecution had relied on PW Nos. 2 & 3, who were stated to have witnessed the occurrence, PW Nos. 17 & 18, who were witnesses to the disclosure made by the appellants, pursuant whereto a Stone was recovered with which the appellants are stated to have hit the deceased, besides the Circumstantial evidence of the appellants having been last seen with the deceased before his death. Out of the two eye witnesses cited in the Final Police Report, only PW-2 was produced in the Court whereas PW-3 was given up by the prosecution. PW-2 did not support the prosecution and was declared hostile. Out of the two witnesses who had been cited to support the appellants’ disclosure and the recovery of Stone, only PW-18 was produced, who too did not support the prosecution case. Whereas PW-17 was given up by the prosecution. Thus, the prosecution failed to prove the eye witness account of the occurrence as projected in the Final Police Report and the alleged disclosure made by the appellants pursuant whereto the weapon of offence i.e. the Stone was stated to have been recovered at the instance of the appellants, as the two witnesses cited for the purpose did not support the prosecution case. There, thus, remained only the circumstantial evidence on which the prosecution sought the appellants’ conviction. On the basis of the Circumstantial evidence produced by the prosecution, the trial Court found the appellants guilty of committing the Murder of Ravinder Kumar-deceased and accordingly convicting under Section 302/34 RPC, sentenced them to imprisonment for life and fine of Rs.5000/-. 3. Appearing for the appellants, Mr. On the basis of the Circumstantial evidence produced by the prosecution, the trial Court found the appellants guilty of committing the Murder of Ravinder Kumar-deceased and accordingly convicting under Section 302/34 RPC, sentenced them to imprisonment for life and fine of Rs.5000/-. 3. Appearing for the appellants, Mr. Rajnesh Oswal contended that the eye witnesses and the witnesses to the disclosure statement and seizure of the alleged weapon of offence having not supported the prosecution case, the appellants are entitled to acquittal in view of the positive evidence of the prosecution that the deceased had died because of asphyxia and not because of any injury on his person. According to him, the learned Sessions Judge had mis-appreciated the Circumstantial evidence to connect the appellants with the commission of the offence whereas no acceptable evidence had been produced by the prosecution to prove that the appellants were last seen with the deceased. According to the learned counsel, the impugned judgment and order of Conviction and Sentence were illegal for there was no sustainable legal evidence to hold the appellants guilty of the Murder of Ravinder Kumar. 4. Per contra, Mr. Gagan Basotra, learned Additional Advocate General, submitted that the evidence produced by the prosecution proving the appellants to have been last seen in the company of the deceased was sufficient enough to sustain the appellants’ Conviction and Sentence, regardless of the Medical evidence, which according to him, was only an opinion, not affecting the veracity of the prosecution case and the sentence awarded to the appellants may not thus warrant interference in Appeal. 5. We have considered the submissions of learned counsel for the parties and perused the judgment and records of the trial Court. 6. Before considering the submissions of learned counsel for the parties, a brief reference to what has been stated by the prosecution witnesses, becomes necessary. PW-4 Nand Lal, is the father of the deceased, who testifies to the old dispute which he had with the appellants. According to him, the appellants and their father had been threatening to kill him. He, however, stated that the appellants and the deceased were in talking terms with each other and used to work together. He could not attend the marriage party on 11.05.2006 because of his sickness and had to be taken to the Hospital by PW-5 Rajesh Kumar and PW-6 Surjeet Kumar, his sons. He, however, stated that the appellants and the deceased were in talking terms with each other and used to work together. He could not attend the marriage party on 11.05.2006 because of his sickness and had to be taken to the Hospital by PW-5 Rajesh Kumar and PW-6 Surjeet Kumar, his sons. He learnt about his son’s death on coming back from the Hospital. PW-5 Rajesh Kumar is the brother of the deceased. According to him, appellant-Vinod Kumar was with his brother for the whole day on 11.05.2006 and both of them had left together at about 7/8 p.m. His father became ill at about 10 p.m. and he took him to Government Medical College Hospital, Jammu. On their way to Hospital, he had seen the appellants with two other persons namely Rajesh Kumar and Kishore Kumar who were holding the deceased. On enquiry, he was told that the deceased had consumed large quantity of liquor and they were taking him home. He thereafter left for the Hospital and came to know about the death of his brother only in the morning. The deceased, according to the witness, was living separately for the last five to six years, though, in the same house. PW-6 Surjeet Kumar, supports the version of PW-5 Rajesh Kumar. PW-7 Harbans Lal testifies only to the fact that the deceased’s body was lying at the back side of a bathroom at Bage-e-Bahu. PW-8 Kishore Kumar, the brother-in-law of the deceased says that the deceased was in the marriage party and had been taken along by the appellants at 10 p.m. PW-9 Dhera Chand is a witness who says that the Post-mortem of the deceased was conducted in Government Medical College, Jammu. PW-10 Amar Chand while testifying to the old enmity of the appellants with the deceased stated that for the last two to three months, before the occurrence, the appellants had been in talking terms with the deceased and he had seen them taking liquor in the Marriage Dinner at Press Morh, Bahu Fort, Jammu on 11.05.2006. PW-10 Amar Chand while testifying to the old enmity of the appellants with the deceased stated that for the last two to three months, before the occurrence, the appellants had been in talking terms with the deceased and he had seen them taking liquor in the Marriage Dinner at Press Morh, Bahu Fort, Jammu on 11.05.2006. PW-11 Surjoo Devi, the mother of the deceased, says that the appellant-Vinod Kumar and the deceased had quarreled about two to four days before the occurrence and the appellants had taken the deceased along with them on 11.05.2006 at about 7.30 p.m. She had found the appellants holding the deceased who was heavily drunk, while on her way to the Hospital along with her husband. She came to know in the next morning that the dead body of her son was lying at the back side of a Bathroom. PW-12 Madhu Devi, the wife of the deceased, says that the deceased had gone with the appellants to the marriage party and she came to know about his death in the morning. PW-13 Bodh Raj says that he, appellant-Vinod Kumar and the deceased had gone to a Hotel at Bahu Fort to consume liquor and after taking liquor, he went to the marriage party whereas Vinod Kumar and the deceased remained standing there. He came to know about the death of Ravinder Kumar in the morning. PW-14 Balwant Raj says that the appellants and the deceased had taken meals together in his Hotel at about 9.30 p.m. and all of them were in senses when they left the Hotel as no liquor was served to them in his Shop. He was not sure as to whether they had consumed liquor before taking the meals. PW-16 Rajesh Kumar had no knowledge about the occurrence and testifies only to the dead body being found at the back side of the Bathroom at Press Morh, Bahu Fort, Jammu. PW-18 Manoj Kumar denies the appellants to have made disclosure Statement in the Police Station and got the weapon of offence recovered. PW-20 Mst. Sandhlah is the mother-in-law of the deceased who is stated to have seen the appellants with the deceased near the venue of the marriage party on 11.05.2006. PW-24 Piaray Lal is a witness who had taken the photographs of the dead body on the instructions of the Station House Officer, Police Station, Bage-e-Bahu, Jammu. PW-20 Mst. Sandhlah is the mother-in-law of the deceased who is stated to have seen the appellants with the deceased near the venue of the marriage party on 11.05.2006. PW-24 Piaray Lal is a witness who had taken the photographs of the dead body on the instructions of the Station House Officer, Police Station, Bage-e-Bahu, Jammu. PW-25 Kaleem Ahmed has prepared the Site Plan of the place of occurrence. PW-27 Onkar Bhatti conducted the Post-mortem of the deceased. PW-Shahul testifies that the blood found on the articles seized in the case was human blood of Group `B’. PW-30 Deepak Raina had conducted the initial investigation which was concluded by PW-32 Kanya Lal. PW-R.K.Anand who was examined under Section 540 of the Code of Criminal Procedure is a witness to the re-sealing of the packet produced before him by the Police. PW-Subash Singh, the Naib Tehsildar, who too was examined under Section 540 of the Code of Criminal Procedure has admitted the correctness of the Certificate issued by him for re-sealing of four sealed packets which were produced before him by the Police. PW-Hatish Kumar summoned under Section 540 of the Code of Criminal Procedure says that on 11.05.2006 at about 9.15 p.m., he had seen the appellants and the deceased near Press Morh on his way back from Bage-e-Bahu Temple on Motorcycle. The appellants declined his help to take the deceased on his Motorcycle as being unconscious, he was stated disabled to ride the Motorcycle. Reference needs to be made at this stage to the Post-mortem report Ext-P27, which reads thus:- "Govt. Medical College Hospital Jammu Department of Forensic Medicine & Toxicology POST-MORTEM EXAMINATION REPORT No: 196 Date 12.05.06 Identified by:- Name Ravinder Kumar 1. Rajesh Kumar (Brother) S/o: Sh.Nand Lal S/o Sh.Nand Lal Age : 43 yrs. Sex : Male R/o Bag-e-Bahu Religion: Hindu 2. Surjit Kumar (Brother) Address: R/o Press More Bag-e-Bahu S/o Sh. Nand Lal R/o Bag-e-Bahu Authority for autopsy Date and Time of Autopsy 12.05.06 at 11 A.M. ASI Darshan Kumar 5604 NGO P/S Bag-e-Bahu Alleged cause of death U/O found dead on 12.05.06 at 8 A.M Last seen alive on 11.05.06 at 9 p.m. In Mohalla. EXTERNAL APPEARANCE : Length of the body: 6 ft Appearance of the body: Average built Signs of Decomposition: Nil Rigor morits: Present all over body well defined. EXTERNAL APPEARANCE : Length of the body: 6 ft Appearance of the body: Average built Signs of Decomposition: Nil Rigor morits: Present all over body well defined. Liver merits: Seen on Rt arm, Rt shoulder, Rt Chest, Rt Leg + fixed. Belongings : White sports shoe, Grey (Light) pent, Blue cheqe shirt, brown underwear and dark grey socks. No visible blood or alike stains over clothes. STATE OF NATURAL ORIFICES: Eyes: Rt Eye ball hanging, Lt. Absent Ears: Absent (both) Nostrils: Mouth Absent Anus: Vuvla/vagina NAD Special remarks II. EXTERNAL AND INTERNAL INJURIES: 1. Soft tissues and bones eaten up from front of neck, Rt. And Lt. Lateral aspect of neck including mandible, tongue and other      soft tissue of oro-pharynx, fascial bones including out 1/3 of frontal bone. Brain matter exposed over frontal area. 2. P.M teeth like nibbling marks seen on upper chest & soft tissues adjacent to the injury in face and neck. [All the injuries were      P.M in nature] III. INTERNAL HEAD : Scalp : Intact (No ext. and Int. Injury seen except over ant 1/3 of Frontal Area). Bones: Ref. to injury No.1 page (2) Membrances: Intact Brain substance : Exposed. Base of skull : Ref. to injury No. 1 page (2) IV NECK : No bruising of soft tissue Injuries, Ligaturemarks etc. Ref. to injury No.1 Page 2 and Dissection finding V. THORAX i) Walls, ribs and cartilages : NAD ii) Pleura, Larynx, Trachea for foreign body or disease, etc. Trachea exposed and Aspiration food   particles seen in remaining      part of trachea. iii) Lungs: iv) Pericardium: NAD v) Heart and blood vessels. VI ABDOMEN: i) Walls, Peritoneum peritoneal cavity contents] ii) Liver, Gall Bladder iii) Pancreas : NAD iv) Spleen v) Kidneys vi) Urinary bladder vii) Stomach - Undigested food particles + mixed with Alcoholic smelling fluid (Ab+ 400 gms) Mucosa intact. Viii) Intestines VII PELVIS : NAD VIII ORGANS OF GENERATION : NAD IX THE "SPINAL CANAL" - NAD Date/Hour of death (as per Hospital record) Time since death Appox. 18 hrs. OPINION AS TO CAUSE OF DEATH: Viscera preserved, labelled sealed handed over to I/o for chemical analysis at FSL. Opinion reserved FSL report No. 744/FSL ext/Sgr of 30.6.2006 brought by I/O reads as under:- No Poison was detected in exhibit Nos. S.163/2006 and 164/2006. FSL report handed over to I/O in original. 18 hrs. OPINION AS TO CAUSE OF DEATH: Viscera preserved, labelled sealed handed over to I/o for chemical analysis at FSL. Opinion reserved FSL report No. 744/FSL ext/Sgr of 30.6.2006 brought by I/O reads as under:- No Poison was detected in exhibit Nos. S.163/2006 and 164/2006. FSL report handed over to I/O in original. Opinion: In view of Post-mortem findings and FSL report, death in this case was due to Asphyxia as a result of Aspiration of food particles. Sd/- Demonstrator, Department of Forensic Medicine, Govt. Medical College, Jammu." Perusal of the prosecution evidence and the Post-mortem report, reveals the following facts:- 1) That in the evening of May 11, 2006, appellant-Vinod Kumar, PW-13 and the deceased had taken liquor together at a Dhaba situated near Saryara Sabha, Bahu Fort, Jammu. 2) The deceased was found intoxicated in the marriage party where the appellants too were present. 3) The appellants were found carrying the deceased who was not in his senses. 4) The injuries found on the person of the deceased were post-mortem. 5) The deceased had died due to asphyxia as a result of aspiration of food particles. 7. According to the statement of PW-27, Dr. Onkar Bhatti there were animal teeth/jaw marks present on the body of the deceased, who, according to him, had died due to blockage of wind pipe by food particles. 8. Reading the statement of PW-27 with the Post-mortem report-Ext-P27, which was not questioned by the prosecution during his examination, makes it explicitly clear that Ravinder Kumar had died due to asphyxia as a result of aspiration of food particles and not because of the injuries found on his person which were Post-mortem injuries and appeared to have been caused by the animals after the death. Presence of the undigested food particles mixed with alcoholic smelling fluid about 400 gms, indicates the deceased to have been heavily drunk before his death. 9. Even if, We were to believe the evidence of the prosecution that the appellants had been last seen with the deceased, before his death, it becomes difficult to uphold the appellants’ Conviction in view of the positive Medical evidence produced by the prosecution to prove that the deceased had died due to asphyxia as a result of aspiration of food particles and the injuries appearing on his body were Post-mortem injuries caused by the animals. 10. 10. Notwithstanding the criticism of the findings of PW-27, by the trial Court, that he had incorrectly recorded in the Post-mortem Report that there were no blood stains on the clothes of the deceased, and about the time of death, which criticism, may not, even otherwise, be sustainable, because PW-27 having not been confronted and questioned on these aspects, during his examination, the criticism becomes irrelevant and unnecessary, the prosecution has not produced any evidence of any type whatsoever to prove that the deceased had died because of any injury on his person. 11. In the circumstances, when the trial Court too has not disputed or questioned that part of the opinion of the Doctor that the deceased had died due to asphyxia as a result of aspiration of food particles, the opinion of PW-27, which is otherwise supported by his observations on the Post-mortem Report indicating the deceased to have been heavily drunk before his death, cannot be ignored. 12. We, therefore, do not find any merit in the learned State counsel’s submission that the medical evidence produced by the prosecution was only an opinion and did not affect the prosecution case. 13. The witnesses who were produced by the prosecution to prove that the appellants had been last seen with the deceased, have stated in unequivocal terms that the deceased had taken liquor before joining the marriage party, in a Dhaba and in the marriage party too, as a result whereof he become unconscious. 14. Looked in the background of the prosecution case as projected by its witnesses, it becomes difficult to ignore the categoric opinion of the Doctor that the death of the deceased was due to asphyxia as a result of aspiration of food particles, which opinion, goes in line with the facts proved by the prosecution suggesting reasonable possibility of Ravinder Kumar’s death by aspiration of food particles because, being heavily drunk, he had become unconscious before his death. 15. In view of the above facts and circumstances of the case, the irresistible conclusion is that the prosecution has failed to prove that Ravinder Kumar had died because of the Stone injury inflicted by the appellants. 16. 15. In view of the above facts and circumstances of the case, the irresistible conclusion is that the prosecution has failed to prove that Ravinder Kumar had died because of the Stone injury inflicted by the appellants. 16. The death of Ravinder Kumar having thus been caused due to asphyxia as a result of aspiration of food particles and not because of any injury on the head, the evidence produced by the prosecution to indicate that the appellants were last seen with the deceased before his death cannot be said to be sufficient to hold the appellants responsible for the death of Ravinder Kumar. 17. Thus the prosecution having failed to prove the eye witness account of the occurrence, the injuries found on the person of the deceased, being Post-mortem injuries and the categoric evidence of the prosecution witness No.27 that Ravinder Kumar had died because of asphyxia as a result of aspiration of food particles, constrains us to hold the prosecution to have failed to produce requisite sustainable evidence to prove the appellants responsible for the death of Ravinder Kumar. 18. Therefore, while setting aside the conviction and sentence recorded by the learned 2nd Additional Sessions Judge, Jammu vide his judgment and order of April 30, 2009 and May 01, 2009, We acquit the appellants directing the respondents to set them to liberty forthwith. 19. The Confirmation Reference is, accordingly, declined.