(1) STATE of Rajasthan filed this appeal assailing the judgment of the High Court of Rajasthan (Jaipur bench) in D.B. criminal appeal 460 of 1995 in which the High Court set aside the judgment of the trial court convicting the accused, respondents herein under section 302 IPC. The respondents were charged under sections 364 and 302 IPC for kidnapping Bachhu Singh and for causing his death. The trial court found the respondents guilty of both the charges; convicted them thereunder and sentenced them to undergo 10 years rigorous imprisonment on the former count and life-imprisonment on the latter count. The High Court while maintaining the conviction and sentence of the respondents under section 364 IPC, set aside the judgment of the trial court in respect of the charge under section 302 IPC. The operative portion of the judgment reads as under:

"OUR independent analysis of the evidence on the record coupled with the infirmities which we have noticed above has created an impression on our minds that the prosecution has not been able to bring home guilt to each of the appellants under section 302 IPC beyond a reasonable doubt. The trial court therefore, was not right in convicting them under the said section. But guilt under section 364 IPC has been fully established against the accused appellants and the accused appellants have been rightly convicted and sentenced under this section. In the ultimate analysis the appeal is partly allowed. The conviction and sentence awarded to accused appellants under section 302 IPC stand set aside and they are acquitted from the said charge. But conviction and sentence of the accused appellants Lakihan, Laxman and Machhar @ Mahes under section 364 IPC are maintained and stand confirmed."

(2) THE incident took place on 20.8.94 at about 10.00 p.m. when the three respondents came in trucks, caught hold of Bachhu Singh (deceased), assaulted him with iron rod and tyre lever and took him away in the truck declaring that they would kill him. The enmity of the respondents against Bachhu Singh was on account of his alleged intimacy with wife of the accused Lakhan Singh. Mohan Singh, brother of Bachhu Singh rushed to the police station at Sewar and lodged a report about kidnapping of his brother Bachhu Singh. When he was still at the police station a wireless message was received at the police station at about 11.15 p.m. that a dead body was lying on the road close-by. When the police officer accompanied by the informant reached the spot the latter identified the body to be that of his brother Bachhu Singh. The body had several external injuries (incised wounds) on the parietal region. There were also marks on the body indicating that the deceased had been crushed under a truck on account of which internal organs like spleen and liver etc. were crushed. The police officer sent the body for post mortem examination, held investigation in the matter, seized blood stained earth from the spot and on completion of the investigation filed charge-sheet under sections 364 and 302 IPC against the respondents.

(3) THE respondents denied their involvement in the incident and claimed to be tried.

(4) THE prosecution examined twelve witnesses, including eye witnesses to the occurrence PWs 1,2,3 and 6 relating to kidnapping of Bachhu Singh. and Dr. Suresh Bansal PW7 who conducted autopsy on the body. However, there was no direct evidence regarding the charge of murder, the prosecution depended on circumstantial evidence to establish the charge.

(5) THE learned trial judge on appreciation of the evidence on record accepted the prosecution case and held the accused guilty of both the charges and convicted and sentenced them, as noted earlier. The High Court partly allowed the appeal filed by the accused persons to the extent noted above. Hence, the appeal by the state.

(6) THE learned counsel appearing for the appellant contended that the High Court clearly erred in int