JUDGMENT Per: U.C. Dhyani, J. One Kastoora Devi wrote a complaint to Patti Patwari, Kankhul, District Chamoli, on 05.11.2005, regarding the killing of her husband Awal Singh. 2. According to the informant Kastoora Devi, her husband left the house on 01.11.2005 in the morning. Awal Singh said that he was going to village Ganoli. Awal Singh did not return by the evening. The next day i.e. on 02.11.2005, at 5:00 a.m., her fellow villager Bhajan Singh came to her house and enquired about her husband. Bhajan Singh then left for Silangi market. Subsequently, at 11:00 a.m., some family members of the informant disclosed her that her husband’s dead body was lying in a pathway. Such pathway was situated in village Ganoli. It was learnt that Bhajan Singh and Awal Singh were coming back from village Ganoli. Although Bhajan Singh reached his village, but Awal Singh did not. Bhajan Singh did not participate in the cremation of Awal Singh. Some people saw Bhajan Singh dragging the body of Awal Singh when they were coming from Ganoli to their village. On account of such suspicion, the complaint was given to Patti Patwari, Kankhul, which was registered as case crime no. 02 of 2005 for the offence punishable under Section 302 IPC. On the basis of such first information report, the investigation began. 3. PW 7 Ashok Kumar, Patwari, inspected the place of occurrence, conducted inquest, prepared inquest report, prepared site plan, referred the dead body of Awal Singh for postmortem, took the statement of Kastoora Devi, prepared site plan, affected arrest of accused Bhajan Singh, took the statements of witnesses on different dates and lastly, submitted charge-sheet (Ext. Ka-3) against the accused in relation to the offence punishable under Section 302 IPC. 4. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 302 IPC was framed against the accused Bhajan Singh, to which he pleaded not guilty and claimed trial. Seven prosecution witnesses, namely, PW1 Kastoora Devi, PW2 Prithvi Singh, PW3 Shakuntla, PW4 Himmat Singh, PW 5 Dhirendra Singh, PW 6 Doctor V.P.Singh and PW7 Ashok Kumar were examined on behalf of prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in which he denied the allegations and said that he was falsely implicated in the case. No evidence was given in defence. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in which he denied the allegations and said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned trial court convicted accused-appellant Bhajan Singh for the offence punishable under Section 302 IPC. He was sentenced to undergo imprisonment for life and a fine of Rs. 20,000/- in connection with such offence. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 5. When the postmortem on the dead body of the deceased was conducted by the Medical Officer Dr. V.P.Singh (PW6), he found four abrasions, one multiple abrasion and two lacerated wounds on different parts of the body of deceased. The Medical Officer also found that 1st cervical vertebra of the deceased was broken. Multiple blood clots were also found under scalp. According to the Medical Officer, the cause of death of victim was shock and haemorrhage due to ante-mortem injuries. He also proved the postmortem report (Ext. Ka-2). 6. PW1 Smt. Kastoora Devi, in her examination-in­chief, proved her complaint (Ext. Ka-1). The report was lodged by her only on the basis of suspicion. She admitted that on 01.11.2005, her husband Awal Singh went to the house of Kishan Singh, who was resident of village Ganoli. Jaiveer Singh also accompanied her husband to the house of Kishan Singh. She also admitted that her husband used to consume alcohol. 7. PW 2 Prithvi Singh said that on 01.11.2005, at around 5:00 p.m., accused Bhajan singh was urinating over Awal Singh. PW 2 said that Awal Singh as well as Bhajan Singh, both consumed liquor. When PW 2, who was brother of Awal Singh, raised an objection as to why Bhajan Singh was urinating over Awal Singh, Bhajan Singh pushed PW 2. In the cross- examination, PW 2 admitted that he did not see as to where Awal Singh went thereafter. 8. PW 3 Shakuntala said that on 01.11.2005, at around 5:00 p.m., Bhajan Singh was dragging the feet of Awal Singh. In the cross-examination, she admitted that Awal Singh was her uncle. She said that she had gone to cut the grass at around 2:00 p.m. She also said that she saw the incident from her field. Many other women witnessed the dragging. In the cross-examination, she admitted that Awal Singh was her uncle. She said that she had gone to cut the grass at around 2:00 p.m. She also said that she saw the incident from her field. Many other women witnessed the dragging. It is to be noted here that no other woman came forward to depose such dragging. 9. PW 4 Himmat Singh said that he saw Bhajan Singh holding the collar of Awal Singh on 01.11.2005 at 5:00 o’clock. The evidence given by PW 3 and PW 4 was not believable. They appeared to be tutored witnesses. There were contradictions in the testimony of PW 3, vis-à-vis, PW 4. 10. PW 5 Dhirendra Singh said that on 01.11.2005, his brother Awal Singh went to village Ganoli at 9:00 a.m., but did not return by the evening. The next day, PW 5 came to know that Awal Singh’s dead body was lying on a pathway. On 04.11.2005, one Prithvi Singh told PW 5 that the victim and appellant were quarrelling with each other. The testimony of PW 5 was based upon hearsay and therefore, the same was not admissible in evidence. 11. It has come in the evidence of PW 2 that appellant and victim were drunk. They were sitting together. PW 2 said that the appellant was dragging the victim. On being questioned by someone, the appellant replied, “don’t worry, I am also going to home. I will take him (victim) along with me.” Thus, cordial relations were highlighted between them. Appellant and victim were said to be good friends. The witnesses saw them in drunken state. Dead body was found 30 meters deep in a ditch in a sloping valley. PW 6 Dr. V.P.Singh admitted that if somebody is pushed or falls into a ditch, he would sustain such injuries. There was no evidence of pushing of victim by the appellant. Alleged ‘last seen evidence’ was not acceptable. The conviction awarded by learned court below can not sustain in the circumstances. The appeal deserves to be allowed. 12. Appeal preferred on behalf of the appellant Bhajan Singh is therefore allowed. The judgment and order dated 25.11.2006 passed by learned trial court is accordingly set aside. The conviction recorded in respect thereof and sentence thus awarded are also set aside. Appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. 12. Appeal preferred on behalf of the appellant Bhajan Singh is therefore allowed. The judgment and order dated 25.11.2006 passed by learned trial court is accordingly set aside. The conviction recorded in respect thereof and sentence thus awarded are also set aside. Appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. Let the lower court record be sent back.