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2015 DIGILAW 493 (ORI)

Dasia Kanika v. State of Orissa

2015-08-20

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : S.K. SAHOO, J. The appellants Dasia Kanika and Tanka Kanika faced trial in the Court of learned Addl. Sessions Judge, Rayagada in Criminal Trial No. 28 of 2005 for offence punishable under section 302 read with section 34 of Indian Penal Code for committing murder of Muna Kanika (hereafter the “deceased”) on 28.11.2004 evening at Karlamada Dangar hillock in furtherance of their common intention. The learned trial Court vide impugned judgment and order dated 31.8.2005 held the appellants guilty under section 302/34 I.P.C. and accordingly convicted them of such offence and sentenced each them to undergo imprisonment for life and to pay a fine of Rs.3000/-each, in default, to undergo R.I. for four months more. 2. On 30.11.2004 at about 7.00 a.m. Jaga Kanika (P.W.2), father of the deceased who was a boy aged about 9 years came to Kumbhikata outpost along with Rupa Huika (P.W.9), Sarpanch of Kumbhikata Gram Panchayat and Jhadu Kanika (P.W.1), Ward Member and orally reported the matter in Kui language before the A.S.I of police, Kumbhikata outpost namely Raghunath Gouda (P.W.8). P.W.9 translated the Kui language to P.W.8 and accordingly P.W.8 reduced it into writing in Oriya and then the contents of the writings were translated to P.W.2 in Kui language by P.W.9 and he admitted the contents to be true and accordingly put his LTI and the same was treated as First Information Report (Ext.1). P.W.8 sent the FIR to Rayagada Police Station for registration, on receipt of which Rayagada P.S. Case No.188 dated 30.11.2004 was registered under section 302/34 IPC by P.W.10 Laxmikanta Prasad, S.I. of Police, Rayagada Police Station in absence of Inspector-in-charge. It is the prosecution case, as per the First Information Report, that the informant (P.W.2) was a cultivator and he was sustaining his livelihood as well as his family out of the usufructs of his cultivation. On 28.11.2004 (Sunday) on the approach of dusk, one of the co-villagers of the informant namely Tulu Kanika (P.W.6) came to him and informed that he had seen the appellants assaulting the deceased by means of kicks and fist blows so also by stone. On 28.11.2004 (Sunday) on the approach of dusk, one of the co-villagers of the informant namely Tulu Kanika (P.W.6) came to him and informed that he had seen the appellants assaulting the deceased by means of kicks and fist blows so also by stone. P.W.6 further stated before the informant that while he was going to the jungle to bring firewood and saw the appellants assaulting the deceased, he requested them not to assault the deceased but the appellants threw the deceased towards the bush and chased him for which, out of fear, P.W.6 returned back and informed the informant. Both P.W.6 and the informant intimated the villagers about the occurrence but they could not locate the deceased during that night. On the next day i.e., on 29.11.2004 morning the informant and some of the co-villagers searched for the deceased at Karlamada Dangar hillock area and found the dead body of the deceased during the evening hours. The deceased had sustained number of injuries on his person and there was profuse bleeding. The informant and the co-villagers returned back to the village, called the appellants and both the appellants confessed to have killed the deceased by assaulting him with kicks and fist blows and also with stone and thereafter strangulated him to death and then threw the dead body at Karlamada Dangar hillock. Since by that time night had already set in, First Information Report could not be lodged which was presented on the next day i.e., on 30.07.2004 at 7 a.m. at Kumbhikata outpost. 3. After receipt of the FIR from P.W.2, P.W.8 took up investigation of the case. He examined the informant and recorded his statement and then deputed a constable to guard the dead body. He also seized one earthen pot tied in salap tree and prepared seizure list Ext.6. He handed over the charge of investigation to P.W.10 on 30.11.2004 at 9.00 a.m. P.W. 10 visited the spot and prepared the spot map Ext.8. He also held inquest over the dead body of the deceased and prepared inquest report Ext.2. He seized blood stained earth, sample earth and a piece of stone stained with blood from the spot and prepared seizure list Ext.7. He also held inquest over the dead body of the deceased and prepared inquest report Ext.2. He seized blood stained earth, sample earth and a piece of stone stained with blood from the spot and prepared seizure list Ext.7. He also sent the dead body for post mortem examination, arrested the appellants and seized one lungi from appellant no.2 Tanka Kanika under seizure list Ext.10 and one check lungi and towel from appellant No.1 Dasia Kanika under seizure list Ext.11. He seized the wearing apparels of the deceased and command certificate under seizure list Ext.12 which were produced by a constable after post mortem examination. He sent both the appellants to the hospital for collection of their blood samples and nail clippings and subsequently received the injury certificate and also the sample blood and nail clippings from the hospital and seized the same under seizure list Ext.13. On 28.01.2005 P.W.10 produced the material objects before S.D.J.M., Rayagada and made a prayer to send the same for chemical examination to RFSL, Berhampur which was accordingly forwarded. After completion of investigation, P.W.10 submitted charge sheet against the appellants on 26.03.2005 under section 302/34 of Indian Penal Code. 4. After submission of charge-sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellants under section 302/34 of Indian Penal Code on 17.05.2005 and since the appellants refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 5. In order to prove its case, the prosecution examined ten witnesses. P.W.1 Jhadu Kanika stated to have accompanied other villagers to Dangar land for searching the dead body of the deceased and the appellants also accompanied them. He further stated to have found the dead body in the Dangar land in the evening. He further stated about the extra judicial confession of the appellants before the villagers in a meeting. He is also a witness to the inquest over the dead body and proved the inquest report Ext.2. P.W.2 Jaga Kanika is the informant in the case and he is the father of the deceased. He further stated to have been informed by P.W.6 to have seen the appellants assaulting the deceased in spite of his protest. He is also a witness to the inquest over the dead body and proved the inquest report Ext.2. P.W.2 Jaga Kanika is the informant in the case and he is the father of the deceased. He further stated to have been informed by P.W.6 to have seen the appellants assaulting the deceased in spite of his protest. He further stated to have located the dead body of the deceased at Karlamda hillock inside a bush lying with bleeding injuries. He further stated about the extra judicial confession of the appellants in the village before Sarpanch and Ward Member. P.W.3 Pitambar Kanjaka is the brother-in-law of the informant. He stated to have met the deceased while he was going to Dangar land to the house of the elder brother of the informant for taking lunch. P.W.4 Kote Kanika is the sister-in-law (elder brother’s wife) of the informant who stated that on the date of occurrence while the deceased was playing outside the house, the two appellants came and called him and the deceased went with them. She further stated that even though she told the deceased not to accompany the accused persons but the deceased insisted to go with them to take salap Juice and thereafter the deceased did not return back. She further stated that to have informed her husband and the informant regarding the deceased accompanying the appellants. P.W.5 Dr. Harihar Das conducted post mortem examination over the dead body of the deceased and proved his report Ext.3. He further answered to the query made by the Investigating Officer as per his query report Ext.4 P.W.6 Pulu Kanika stated to have seen the appellant as well as the deceased in the Dangar land. He did not support the prosecution case in toto for which he was declared hostile by the prosecution. P.W.7 Arju Kanika stated to have searched for the dead body of the deceased along the appellants and others and located the dead body inside a bush. P.W.8 Raghunath Gauda was the A.S.I. of Police, Kumbhikata Outpost who on 30.11.2004 reduced the oral report of the informant into writing and sent the same for registration to Rayagada police station. He handed over the charge of investigation to P.W.10 on the very day. P.W.9 Rupa Huika was the Sarpanch of Kumbhikata Gram Panchayat and he stated about the extra judicial confession of the appellants. He handed over the charge of investigation to P.W.10 on the very day. P.W.9 Rupa Huika was the Sarpanch of Kumbhikata Gram Panchayat and he stated about the extra judicial confession of the appellants. He also translated the version of the informant before P.W.8 at the time of registration of the FIR. He is also a witness to the seizure of a stone, blood stained earth and sample earth at the spot as per seizure list Ext.7. P.W.10 Laxmikant Prasad was the S.I. of Police of Rayagada Police Station who is the investigating officer of the case. The prosecution exhibited fifteen documents. Ext.1 is the FIR, Ext.2 is the inquest report, Ext.3 is the post mortem report, Ext.4 is the query made by the I.O., Ext.5 is the command certificate, Exts. 6, 7, 10, 11, 12 and 13 are the seizure lists, Ext.8 is the spot map, Ext.9 is the dead body challan, Ext.14 is the forwarding letter of the S.D.J.M and Ext.15 is the chemical examination report. The prosecution also proved four material objects. M.O. I is a stone, M.O.II is the shirt of the deceased, M.O.III is the pant of the deceased and M.O.IV is the salap earthen pot. 6. The defence plea is one of denial. No witness was examined on behalf of the defence and no document was also proved on behalf of the defence. 7. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.2, the prosecution has relied upon the evidence of P.W.5 Dr. Harihar Das who had conducted post mortem examination over the cadaver of the deceased on 1.12.2004 on police requisition at District Headquarters Hospital, Rayagada. During post mortem examination, following sustained external injuries were found on the cadaver of the deceased:- i. Abrasionon the back15cm x 6cm x 8 cm extending from T1 to T10 (back side); ii. Ecchymosis in front of throat 5 cm. x 2 cm at the thyroid eminence; iii. Abrasion on the right thigh on the lateral aspect 3 cm x 4 cm in size; iv. Bruise on the scalp on the vertex and extending to the left parietal region 10 cm x 8 cm with one lacerated wound 2 cm x 1 cm; v. One bruise on the left thigh of size 5 cm x 3 cm. Abrasion on the right thigh on the lateral aspect 3 cm x 4 cm in size; iv. Bruise on the scalp on the vertex and extending to the left parietal region 10 cm x 8 cm with one lacerated wound 2 cm x 1 cm; v. One bruise on the left thigh of size 5 cm x 3 cm. On dissection, the autopsy doctor found that there was hematoma involving left parietal bone, completely and extending partially to the left parietal region which corresponds to injury no. iv. The autopsy doctor further opined that the cause of death was cerebral haemorrhage being hit by hard and blunt object and the time since death was about 24 to 36 hours. He further opined that the injuries sustained by the deceased are homicidal in nature and injury no. iv and its corresponding internal injury is sufficient in ordinary course of nature to cause death. The post-mortem examination report was marked as Ext.3. On query of the Investigating Officer, who had sent a piece of stone for examination, the autopsy doctor opined that injury no. iv is possible by the stone sent to him and the other external injuries as well as the internal injury are possible on coming in contact with rocky surface. The query report was marked as Ext.4. The learned counsel for the appellant submitted that the opinion of the doctor that it is a case of homicidal death is not at all acceptable. He further contended that the doctor has stated that injury no. iv is possible if one falls on the ground from a tree and other injuries are also possible on coming in contact with rocky surface. He further contended that since it is the prosecution case that the deceased had been to the Karlamada danger hillock with the accused persons to take salap juice and therefore the possibility of his falling from salap palm tree and receiving all the injuries due to such fall cannot be ruled out and therefore in all possibility it may be a case of accidental fall of the deceased from the salap palm tree on a rocky surface. We are not impressed with the argument advanced by the learned counsel for the appellants inasmuch as neither any such plea has been taken by the defence during trial nor any questions have been put to the doctor conducting post-mortem examination as to whether due to fall of the deceased on the ground from a tree, the other injuries as was noticed by him on the person of the deceased were also possible along with injury no. iv. Without putting specific questions to the doctor in that respect, it is not proper to act on surmises particularly on medical evidence aspect. The deceased was found lying inside a bush as per the evidence of the prosecution witnesses as well as the inquest report and not near any salap palm tree. There is also no evidence that any blood stains were noticed near the salap palm tree from where P.W.8 seized one earthen pot under seizure list Ext.6 rather the blood stained earth was seized from near the place where the dead body was lying. After going through the testimony of the autopsy doctor and the post-mortem examination report Ext.3, we are not able to accept the contentions raised on behalf of the learned counsel for the appellants that it is a case of accidental death rather we are of the view that the prosecution has successfully established that the deceased met with a homicidal death. 8. The learned counsel for the appellants Mr. Rabindranath Nayak lunching further scathing attack on the impugned judgment and order submitted that since the eye witness P.W.6 has not supported the prosecution case and no motive behind the commission of the crime has been established, the prosecution case should be disbelieved. He further submitted that the last seen theory as advanced by the prosecution is not at all credible and the so-called extra judicial confession by the appellants in the meeting before the villagers is not trustworthy and therefore the prosecution has miserably failed in bringing unimpeachable credible evidence concerning the participation of the appellants in the alleged crime. Submitting conversely, the learned counsel for the State Mr. Submitting conversely, the learned counsel for the State Mr. Deepak Kumar, Additional Standing Counsel argued that even if the eye witness P.W.6 has not supported the prosecution case and no specific motive for commission of crime has been established but the last seen of the deceased in the company of the appellants as well as extra-judicial confession of the appellants before the villagers are sufficient to make out the culpability of the appellants. He further contended that the deceased was just aged about nine years at the time of occurrence and the manner in which the appellants assaulted the deceased by means of a stone and also caused the other injuries squarely makes out an offence under section 302 of Indian Penal Code. 9. We have thoughtfully considered the rival contentions vis-à-vis the evidences on record. In view of the fact that the eye witness P.W.6 has not supported the prosecution case, now the case hinges upon circumstantial evidence. There are two circumstances against the appellants i.e. last seen of the deceased in the company of the appellants as stated by P.W.4 and P.W.6 and extra judicial confession of the appellants before P.W.1, P.W.2 and P.W.9. Motive 10. Under Section 8 of the Evidence Act, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In a case based on circumstantial evidence, motive plays a very significant role. Proof of motive in such a case lends additional support to the findings of the guilt. When the motive alleged against the accused persons is fully established by the prosecution, it affords a key or pointer to scan the evidence in the case, in that prospective and as a satisfactory circumstance of corroboration and further provides a foundational material to connect the chain of circumstances. Absence of motive in a case which is based on circumstantial evidence puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjectures do not take the place of legal proof. Motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasonings. In the case in hand, as a matter of fact, the prosecution has failed to establish any motive on the part of the appellants to commit the crime. Last seen theory 11. Motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasonings. In the case in hand, as a matter of fact, the prosecution has failed to establish any motive on the part of the appellants to commit the crime. Last seen theory 11. Coming to the last seen theory as advanced by the prosecution, P.W.4 has stated that while the deceased was playing outside and she was present in the hut, the two appellants came there and called the deceased and the deceased went along with them. She has further stated that she asked the deceased not to go with the appellants but the deceased left saying that he was going to take salap juice and thereafter the deceased did not return back. P.W.4 has stated that her husband Sundar returned back in the night and asked her about the whereabouts of the deceased and she told him that the appellants took the deceased along with them. The husband of P.W.4 has not been examined in the case to corroborate the version of P.W.4. P.W.4 has further stated that during that night the informant Jaga (P.W.2) and Pulu (P.W.6) came to the dangar and asked her about the whereabouts of the deceased and she told them that the appellants took the deceased along with them. Neither P.W.2 nor P.W.6 has corroborated the version of P.W.4. If it is the case of the prosecution that P.W.6 is an eye witness to the occurrence and he disclosed before the informant (P.W.2) that he saw the assault on the deceased by the appellants in Karlamunda dangar hillock by means of kicks and fist blows as well as by stone and that P.W.6 was also threatened by the appellants and then the appellants threw the body of the deceased in a bush and thereafter chased P.W.6 to be assaulted, there was no earthly reason for P.W.2 and P.W.6 to go to P.W.4 to ascertain about the whereabouts of the deceased. This statement of P.W.4 that P.W.2 and P.W.6 had come to search for the deceased rather substantiates that P.W.6 had no knowledge of the occurrence and he had also never disclosed about the occurrence before P.W.2. This statement of P.W.4 that P.W.2 and P.W.6 had come to search for the deceased rather substantiates that P.W.6 had no knowledge of the occurrence and he had also never disclosed about the occurrence before P.W.2. It is also the prosecution case that on the next day of occurrence, almost all the villagers alongwith P.W.6 and the appellants started searching for the dead body of the deceased in the morning and in spite of that they could able to locate the same in the evening. This aspect also indicates that neither P.W.6 nor even the appellants were aware about the location of the dead body beforehand as well as place of the murder. If everybody was aware that the appellants are the authors of the crime in view of the disclosure made by P.W.6, they could have easily located the dead body much earlier. In the First Information Report P.W.2 has not mentioned regarding the disclosure made by P.W.4 about last seen aspect before him. Thus the evidence of P.W.4 does not inspire confidence. Similarly P.W.6 has stated that he had been to the dangar land on a Sunday and found the deceased and also the appellants there. This witness did not support the prosecution case regarding the assault on the deceased by the appellants for which he was declared hostile. In the cross-examination, P.W.6 has stated that he has not seen anybody at dangar till he returned back to his village. Thus the evidence of P.W.6 also does not inspire confidence. Law is well settled that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. Only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused. The principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The last seen theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. After scanning the evidence relating to the last seen of the deceased in the company of the appellants, we found the same to be shaky in nature and as such it would not be proper to accept such evidence. Extrajudicial confession 12. It is a settled principle of criminal jurisprudence that extrajudicial confession is a weak piece of evidence and requires appreciation with a great deal of care and caution. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The Court has to satisfy itself in regard to the voluntariness of the confession, truthfulness of the confession and independent reliable corroboration. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extrajudicial confession is surrounded by suspicious circumstances and suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, its credibility becomes doubtful and it loses its importance and it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. However an extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court and conviction can be founded thereon if the evidence about the confession comes from the mouth of the witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused. In this case, extra judicial confession of the appellants has been deposed to by P.W.1, P.W.2 and P.W.9. P.W.1 has stated that a meeting was convened in the village. Sarpanch and Ward members were present in the meeting. The appellants were called to the meeting. On the query of the gentries, both the appellants confessed that they had killed the deceased as he was taking salap from their salap tree. P.W.1 has stated that he belonged to Congress party and the informant (P.W.2) was his supporter. He further stated that in their village, the minutes of the meeting were reduced to writing and the members present in the meeting used to sign in the minutes. P.W.1 admitted that the proceedings of this meeting were not reduced into writing. P.W.2 has stated that in the village, they asked the appellants and both of them confessed to have killed the deceased. He further stated that Sarpanch, Ward member were present when the appellants confessed their guilt. On going through the evidence of P.W.1 and P.W.2, it is not clear as to what exact statements were made by each of the appellants by way of extra-judicial confession. It is wholly unlikely that both the appellants would make a joint statement. It is not clear as to who confessed first and who confessed second or whether both of them confessed one after another. It is but a natural curiosity to ask as to why a person of sane mind should at all confess and what benefit he would get by making such confession. Extrajudicial confession, in order to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for the confession and the person selected in whom confidence is reposed. Extrajudicial confession, in order to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for the confession and the person selected in whom confidence is reposed. Neither P.W.1 nor P.W.2 has reproduced the exact words of each of the appellants. When P.W.1 has stated that the appellants confessed also about the reasons for killing the deceased, P.W.2 has not stated so and he has simply stated that the appellants confessed their guilt. Assessing the evidence of P.W.1 and P.W.2, we are of the view that joint confession cannot be used against either of the appellants as such type of evidence can easily be procured whenever there is no direct evidence. P.W.9 who is the Sarpanch of Kumbhiketa Grama Panchayat who has stated that he sent for the appellants through the village barbar Narendra Kousalya and the appellants came. He further stated that on his query to appellant Dasia, he told that the deceased was taking their salap juice at Karlamada forest for which they killed him. Then he asked appellant Tanka, who also stated the same thing that they had killed the deceased at Karlamada jungle. The barbar Narendra Kousalya who according to P.W.9 was sent to call the appellants has not been examined in the case. P.W.9 has sated that he came to village TItijhela in the evening from Kumbhiketa Panchayat Office and reached at there at 8 p.m. At this juncture, it would be relevant to take note of the statement of P.W.1 who has stated that meetings in their village are usually convened at about 3 to 4 p.m. and villagers used to take their dinner and go to sleep at about 6 to 7 p.m. Thus not only the holding of the meeting appears to be doubtful but also the discrepancies in the evidence of these three witnesses create doubt about the credibility of evidence relating to extrajudicial confession. In the scenario in which the extrajudicial confession is stated to have been made by the appellants, it cannot be said to be voluntary. It appears that the appellants have retracted their confession. In the scenario in which the extrajudicial confession is stated to have been made by the appellants, it cannot be said to be voluntary. It appears that the appellants have retracted their confession. When an extrajudicial confession is retracted by an accused, there is no inflexible rule that the Court must invariably accept the retraction but at the same time it is unsafe for the Court to rely on the retracted confession, unless, the Court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true. Analysing the evidence on record relating to extrajudicial confession, we are of the view that it suffers from material discrepancies and inherent improbabilities and does not appear to be cogent and inspire confidence and accordingly we discard the same. 13. The case rests upon circumstantial evidence and we find that the circumstances put forth by the prosecution from which the conclusion of guilt is to be drawn have not been fully established and the facts established are inconsistent with the hypothesis of the guilt of the appellants and those are also explainable on any other hypothesis and the circumstances are not of a conclusive nature and tendency and the chain of evidence is also not so complete to come to an irresistible conclusion that the act must have been done by the appellants. 14. In a case depending upon circumstantial evidence, there is always a danger that the suspicions, conjectures and surmises taking the place of legal proof. Mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole. More ingenious the mind of the individual, the more likely is it, considering such matters, to overreach and mislead it, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. 15. In view of the evidence available on record, we are of the view that it is difficult to accept that the prosecution has established the case against the appellants beyond all reasonable doubt. 15. In view of the evidence available on record, we are of the view that it is difficult to accept that the prosecution has established the case against the appellants beyond all reasonable doubt. The conclusion arrived at by the learned trial Court in convicting the appellants and the reasonings assigned for arriving at such conclusion are not at all acceptable and convincing and it seems that the learned trial Court has proceeded on the basis of conjectures and suspicions and impugned verdict is nothing but a sheer moral conviction. There is a long distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. Law is well settled that the suspicion howsoever strong cannot take the place of proof. No doubt the offence is gruesome and heinous and a young boy aged about 9 years has lost his life but emotions and sentiments have no place in a criminal trial. Fouler the crime, the higher should be the proof. Thus we hold that the case against the appellants has not been established by the prosecution beyond all reasonable doubt and therefore they are acquitted of the charge under Section 302/34 of Indian Penal Code. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence is set aside and the appellants are acquitted of the charge under sections 302/34 of Indian Penal Code. The appellants are in jail custody since the date of their arrest. They should be released forthwith if they are not required to be detained in any other case.