IMPORTANT POINT
In absence of proof of homicidal death, accused could not be convicted merely on theory of last seen together with deceased.

ORDER

Appellants in both these appeals were convicted by sessions court for offences under sections 302/34, 323/34 and 341/34 of the Indian Penal Code. For offence under section 302 read with 34, life imprisonment with fine of Rs. 25,000/- (twenty five thousand) on each of them was imposed and in default for payment of fine, they were directed to undergo imprisonment for a period of three years. For other two offences, one year s simple imprisonment with fine of Rs. 500/- and one month s simple imprisonment with fine of Rs. 500/- was respectively imposed. All substantive sentences were ordered to be run concurrently. The appeals challenging the conviction and sentence passed by the sessions court were dismissed by the High Court and therefore, these appeals have been filed on grant of leave.

2. The prosecution case in brief is that the appellants visited the house of deceased Om Singh at about 10.30/11.00 p.m. on 1st May, 1999. Om Singh went with them on a motor cycle. All the three had friendly relations. At 7.00 a.m. on 2nd May, 1999 appellant Nathu Singh Rathore came to the house of Om Singh and informed his son Sher Singh (PW 1) that Om Singh had an accident and was lying at Khirni Phatak in Jhotwara locality of Jaipur. That place is near the house of appellant Madho Singh. Sher Singh accompanied by his neighbour Vikram Singh and appellant Nathu Singh left for the said place. On reaching there they learnt that Om Singh had been taken to Deep hospital at Jaipur by appellant Madho Singh. They went to the said hospital. On reaching Deep hospital it was learnt that since the condition of Om Singh was serious he had been referred to SMS hospital and had been taken to that hospital. Thus, PW 1 went to SMS hospital. For the first time a report was lodged by Sher Singh on 3rd May, 1999 that he had learnt from a blank telephone call that in fact his father had been given a beating in the house of Madho Singh and had been thrown out and that it was not a case of accident. Om Singh remained in the hospital till his death. He ultimately died on 6th May, 1999 at 8.30 p.m. After the death, the accused persons were arrested, charged and convicted and sentenced as noticed hereinbefore.

3. While in Deep hospital no treatment seems to have been given to Om Singh. That is the statement of PW 11 Dr. Lakhan Lal. Further statement of PW 11 is that face of Om Singh was crushed. He deposed that no treatment was given to him and the hospital authorities asked Om Singh to be taken to SMS hospital, although no slip of this reference was prepared. Further it appears from the testimony of PW 15 Dr. N.S. Disaniya that Om Singh was examined by him on 4th May, 1999, on the PW 15 being called from neuro surgery ward. On examination of Om Singh the injuries which were found on his person were stated by the witness. There is no evidence on record whether any treatment at all was given to Om Singh prior to 4th May, 1999. The post-mortem of the body of Om Singh was also conducted by PW 15. It is in his evidence that on examining the chest he found the left ribs were fractured. The cause of death was stated to be coma as a result of head injuries. Further the witness has deposed that the head injuries can also be sustained in accident.

4. PW 1 though in the report lodged on 3rd May, 1999, to the police, had stated that his father Om Singh was carrying Rs. 3000/- in cash and was wearing a H.M.T. wrist watch which were missing from his person, however, later on 22nd May, 1999 Sher Singh gave a report to the police that the cash and watch had been found from the house and had not been stolen from the deceased and, therefore, that aspect may be deleted from the first information report.

5. The primary, if not solitary basis of the conviction of the appellants is on the theory of last seen as the deceased left his house with the appellants at about 11.00 p.m. on the 1st May, 1999. In order to convict the appellants for an offence under Section 302 the first and foremost