JUDGMENT V.K. Bist, J. This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 21.12.2017 passed by learned Sessions Judge in Sessions Trial No.17 of 2015 State vs. Mukesh Nautiyal and others whereby accused/appellant Mukesh has been convicted under Section 302 IPC and Section 201 IPC read with Section 120(B) of the Indian Penal Code (hereinafter referred to as IPC). Appellant has been sentenced by the Session Judge for life and has been directed to pay fine of Rs. 5,000/-. In default of payment of fine, appellant has been directed to undergo six months additional imprisonment. He has further been convicted under Section 201 IPC read with Section 120(B) I.P.C. and directed to undergo three years rigorous imprisonment and is directed to pay fine of Rs. 2,000/-. In default of payment of fine, he has been further directed to undergo additional imprisonment for a period of three months. It is directed that both the sentences shall run concurrently. 2. We heard Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Sahilendra Nauriyal, Advocate for the appellant and Mr. Amit Bhatt, Deputy Advocate General for the State of Uttarakhand. 3. The prosecution story, in brief, is that on 05.07.2015, one Tota Lal lodged First Information Report in Thana Dharasu, District Uttarkashi stating therein that on 05.07.2015 at about 05:30 p.m. his son Pradeep Bharti, with his few friends, went out for a walk but his son did not return. He searched his son at different places but could not find him. On enquiry, he came to know that his son had some quarrel in the hotel of one Manveer Singh Negi at Nalupani. Thereafter the boys, who accompanied with his son, came back to their home but his son did not come back. His motor cycle no.9290 is standing on road at Nalupani. He apprehended that his son was abducted. 4. The matter was investigated and charge sheet was filed against the accused/appellant-Mukesh, Servesh and Neeraj. Learned Chief Judicial Magistrate, Uttarkashi on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. The learned Session Judge framed charges against accused/appellant-Mukesh, Servesh Nautiyal and Neeraj Nautiyal. Learned Chief Judicial Magistrate, Uttarkashi on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. The learned Session Judge framed charges against accused/appellant-Mukesh, Servesh Nautiyal and Neeraj Nautiyal. Accused/appellant as well as other accused pleaded not guilty and claimed to be tried. On this prosecution got examined as many as 12 witness. P.W.1 Tota Ram (father of the deceased), P.W.2 Kuldeep, P.W.3 Suman Singh (friend of deceased), P.W.4. Dr. Sovendra Singh Rana (who conducted the medical examination of deceased), P.W.5. Constable Mohan Singh, P.W.6 Pooran Lal (uncle of the deceased), P.W.7, Vipin Gaurav Negi (owner of hotel Gyandeep), P.W.8 Constable Subodh Chandra, P.W.9 Rajpal Singh alias Rajji, P.W.10 Chandra Mohan Kala, P.W.11 Constable Deepak Singh Rawat, P.W.12 S.I. Varu Singh Chauhan. Oral and documentary evidence was put to the accused/appellant under Section 313 Cr.P.C., in reply to which he alleged that the evidence adduced against him is false. After hearing the parties, the trial court found accused/appellant guilty of offence punishable under Section 302 IPC and Section 201 read with 120(B) IPC and convicted him accordingly. However, other accused namely, Sarvesh Nautiyal and Neeraj Nautiyal were given benefit of doubt and were acquitted. Aggrieved by the judgment and order dated 21.12.2017, passed by the Sessions Judge, Uttarkashi in Sessions Trial No.17 of 2015, this appeal is preferred by the convict appellant. 5. P.W.1 Tota Lal, complainant/father of Pradeep (deceased) in his statement before the Court stated that on 05.07.2015 at 05:30 p.m. his son went out of house but he did not come back. He thought that he had gone to Uttarakashi. When, on 06.07.2015, he went to Uttarkashi for attending his duty, he did not find his son in his room. He also enquired from the maternal uncle of the deceased, but he was told that he was not at their place. Thereafter he asked from his wife about his son but his son was not in the home. Thereafter, he enquired from his relatives but could not get any information about his son. Same day in the evening he reached home. On 07.07.2015 he went to Dunda in his relation to enquire about his son but he could not get any clue. Thereafter, he enquired from his relatives but could not get any information about his son. Same day in the evening he reached home. On 07.07.2015 he went to Dunda in his relation to enquire about his son but he could not get any clue. He heard from the villagers that motor cycle of his son was standing on road at Nalupani. When they reached Nalupani, they found the motor cycle on road near a hotel. Thereafter they went to Thana Dharasu and lodged the missing report. He stated that while returning from Dharasu, they went to the place where motor cycle of his son was standing. They searched his son at nearby place but could not find him. On 08.07.2015 again he went to Thana Dharasu, where Station Officer told him to reach at the place of incident and police team would also reach there. When police team reached there, they found the dead body of his son lying on the stone at the bank of the river. He stated that at the place where the dead body of his son was lying, nobody could reach easily. He stated that after some time, on inquiry, he was informed by Kuldeep, Suman and Pramod of his village that they alongwith Pradeep (deceased) went to a hotel of Manveer in Nalupani, where they consumed liquor. There they had quarrel with the wine shop owner. After that, salesman of the wine shop attacked them by iron rod (sariya) and lathis but they ran away. 6. P.W.2. Kuldeep Singh is the person who was with the deceased. He in his statement has stated that on 05.07.2015, he and one villager Pramod came to Devidhar. They were sitting in a shop. They consumed liquor there. When they were going to their home, they saw Suman and Pradeep (deceased) near the shop of Rajji, who called them. They stayed there at the shop of Rajji. He stated that Pradeep (deceased) insisted him for liquor. On his asking, this witness gave Rs.100/- to Pradeep, who purchased liquor from that hotel and all of them drank. He stated that one Nepali came there. Nepali told the hotel owner to drop him at Nalupani. At this, Pradeep, the deceased told him that he would drop him at Nalupani on the assurance that Nepali would arrange a bottle of liquor for him. He stated that one Nepali came there. Nepali told the hotel owner to drop him at Nalupani. At this, Pradeep, the deceased told him that he would drop him at Nalupani on the assurance that Nepali would arrange a bottle of liquor for him. Thereafter Nepali and Suman sat on Pradeep's bike and went to Nalupani. Behind them, this witness and Pramod also went on another motor cycle. At Nalupani, they stopped at the Dhaba of Negi. Nepali bought a bottle of liquor and all of them drank liquor. At that place, Nepali had hot talks with Pramod. The hotel owner Manveer Negi hit Pramod and Nepali with a stick. This witness and Pramod left that place. Thereafter, they went towards Devidhar. Pradeep and Suman met them ahead of Nalupani. Since it was late, they decided to stay in a hotel. They returned back from Nalupani to Dharasu. Pradeep and Suman also came there. One motor cycle was driven by this witness and another motor cycle was driven by the deceased Pradeep. When they reached at the temple near Nalupani; three boys came on motor cycle from other side. Light of the bikes were off. They were coming from Dharasu toward Nalupani. This witness stated that his bike's light was on. He stated that those three boys were armed with iron rod (sariya) and danda. By seeing them, when this witness tried to run away, Mukesh (accused/appellant) slapped him. Pramod, who was sitting on back seat, ran away towards Chimyali. Pradeep and Suman also followed them. This witness stated that first he fell down and then ran away towards Chimyali and hide himself in Gyandeep hotel and remained there for 1-2 hours. When he came out, he did not see anyone. In the morning, he saw that motor cycle of Pradeep was standing at the place where quarrel took place previous night. Thereafter this witness went to home from Devidhar. He enquired from Suman on phone whether deceased reached home or not. This witness stated that in the hotel of Manveer nobody had any quarrel or marpeet with Pradeep Bharti (deceased) and Suman. He stated that on 09.07.2015 dead body of deceased was recovered from the bank of river. This witness repeated that nobody had any quarrel or marpeet with Pradeep and Suman in his presence. 7. P.W.3. Suman Singh stated that same thing which has been stated by P.W.1. He stated that on 09.07.2015 dead body of deceased was recovered from the bank of river. This witness repeated that nobody had any quarrel or marpeet with Pradeep and Suman in his presence. 7. P.W.3. Suman Singh stated that same thing which has been stated by P.W.1. In his statement he has stated that when they were going towards Devidhar, deceased told him that let Kuldeep and Pramod come. After some time, Kuldeep and Pramod came there. Thereafter, they started going towards Nalupani. In one motor cycle Kuldeep and Promod were sitting and in another motor cycle this witness and Pradeep were sitting. All of them started going towards Nalupani. Suddenly, 2-3 boys came on motor cycle from Nalupani towards Devidhar. They were armed with danda and iron rod. They stopped their motor cycle in front of Kuldeep's motor cycle. They started beating and abusing Kuldeep. Kuldeep ran away towards Dharasu. Pramod, who was sitting with Kuldeep also ran away towards Dharasu. As soon as, those boys reached near, this witness told Pradeep to run away. This witness himself ran away towards Devidhar and when he turned around he saw that these boys were quarrelling with Pradeep (deceased) and some of them were telling catch him. This witness stated that he ran for about 5 minutes on road and then he went towards jungle. This witness, stated that Neeraj, Sarvesh and Mukesh committed marpeet. 8. P.W.4 Dr. Sovind Singh Rana is the Medical Officer, who conducted the post mortem. He supported the entry made in post mortem. This witness stated that cause of death is injury caused on head. He stated that the injuries can be by weapon. However, in his cross examination, this witness admitted that the injuries mentioned in post mortem can also be due to falling down from hill. 9. P.W.5 Constable C.P. Mohan Singh Rawat, was member of the team, which searched the deceased and found the dead body of the deceased. 10. P.W.6 Pooran Lal, (chacha) uncle of the deceased. He stated that he was in search party of villagers, which searched the dead body of the deceased. He stated that he was the witness of the inquest report. 11. P.W.7 Vipin Gaurav Negi, is the owner of Gyandeep hotel at Nalupani. He stated that on 05.07.2015 at about 09:00 to 09:30 p.m. he was present in the hotel. He stated that he was in search party of villagers, which searched the dead body of the deceased. He stated that he was the witness of the inquest report. 11. P.W.7 Vipin Gaurav Negi, is the owner of Gyandeep hotel at Nalupani. He stated that on 05.07.2015 at about 09:00 to 09:30 p.m. he was present in the hotel. Kuldeep came in his hotel and asked him for a room and went away saying to come later. Again at around 11:30-12:00 p.m. Kuldeep knocked the door; he was scared and told that somebody committed marpeet with him. 12. P.W.8. is Constable C.P. Subodh Chandra. On 07.07.2015, he was posted at Thana Dharasu as constable clerk and he was the subscriber of First Information Report. 13. P.W.9 Rajpal Singh alias Rajji stated that he is the owner of hotel in Devidhar. He stated that on 05.07.2015, in the evening, two boys came from village Singuri in his hotel. Thereafter two more boys came. They had some discussion. In between, one Nepali also came in the hotel. Then Nepali went towards Nalupani on motor cycle of one boy. He stated that he does not know the name of those four boys and those boys did not consume liquor in his hotel. 14. P.W.10 Chandra Mohan Kala, was posted in Police Chauki Gewla, Brahamkhal. He was member of that team which discovered found dead body of the deceased at the bank of the river. 15. P.W.12 is Sub Inspector Barul Singh Chauhan. He stated that missing report of Pradeep Bharti (deceased) was lodged by Tota Ram, father of the deceased on 09.07.2015. On 08.07.2015, when they reached towards Nalupani area, 250 meters beneath the road at the bank of river, between stones they found the dead body of deceased. 16. The learned Sessions Judge after examining the statement of the witnesses has convicted the accused/appellant under Section 302 IPC and Section 201 read with Section 120(B) IPC. However, he acquitted the accused Sarvesh Nautiyal and Neeraj Nautiyal under Section 302 IPC read with Section 34 and Section 201 read with 120(B) IPC. 17. We have considered the submission of learned counsel for the parties and carefully gone through the record of the case. We find the learned Sessions Judge acquitted the two co-accused Sarvesh Nautiyal and Neeraj Nautiyal but at the same time convicted the appellant under Section 120-B IPC also. 17. We have considered the submission of learned counsel for the parties and carefully gone through the record of the case. We find the learned Sessions Judge acquitted the two co-accused Sarvesh Nautiyal and Neeraj Nautiyal but at the same time convicted the appellant under Section 120-B IPC also. When all the co-accused are acquitted, the appellant could not be convicted under Section 120-B, I.P.C. We have no hesitation to say that order has been passed without application of mind. We further find that appellant has also been convicted under Section 302 and 201 I.P.C. We have carefully gone through the statement of the witnesses. We find that no witness, except P.W.3, has named the accused involved in quarrel or marpeet with the deceased. There is nothing in the statement of witnesses, which could suggest that appellant was involved in the murder of deceased. No motive is also shown. P.W.3 in his statement has said that apart from Neeraj and Sarvesh, the appellant (Mukesh) also committed marpeet. This witness does not state that marpeet was committed with the deceased. Moreover, on the basis of this statement also the appellant could not be convicted when other co-accused Neeraj and Sarvesh were acquitted by the Sessions Judge. We have seen the statement of P.W.4-Dr. Sovendra Singh Rana, who conducted the post-mortem of the deceased. In his statement he has stated that injuries are possible, if someone falls down from hill. All these points have not been considered by the learned Sessions Judge. 18. In the above circumstance, and in view of discussions above, and also after going through the entire evidence on record carefully, we are of the view that it cannot be said beyond reasonable doubt that accused/appellant Mukesh Nautiyal has murdered Pradeep Bharti, as suggested by the prosecution. It is a fit case where appellant deserved benefit of doubt and appeal deserves to be allowed. The appeal is allowed. The conviction and sentence recorded by the trial court vide judgment and order dated 21.12.2017, passed in Sessions Trial No.17 of 2015, is set aside. The accused/appellant Mukesh Nautiyal is acquitted of the charge of offence punishable under Section 302 and 201 read with 120-B I.P.C. He is in jail. He be set at liberty, if not wanted in connection with any other crime. The accused/appellant Mukesh Nautiyal is acquitted of the charge of offence punishable under Section 302 and 201 read with 120-B I.P.C. He is in jail. He be set at liberty, if not wanted in connection with any other crime. Registry is directed to send a copy of this order to the Superintendent of Jail, where the accused is lodged.