IMPORTANT POINT
Last seen theory, without motive cannot be the basis for conviction.

JUDGMENT

C. NAGAPPAN, J.

Leave granted.

1. This appeal is preferred against the judgment of the High Court of Judicature for Rajasthan at Jodhpur, in D.B. Crl. Appeal No.515 of 2004.

2. The appellant herein Kanhaiya Lal, is accused No.2 in Sessions Trial No.01 of 2004 on the file of Additional District & Sessions Judge, Fast Track No.1, Dungarpur, -

3. and he was tried for the alleged offences under Section 302 and 201 IPC and on being found guilty was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1000 in default to undergo simple imprisonment for 6 months for the offence under Section 302 IPC and further sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.500 in default to undergo simple imprisonment for 3 months for the offence under Section 201 IPC, and the sentences were ordered to run concurrently. Accused No.1 Raman Lal was also tried along with accused No.2 Kanhaiya Lal for the alleged offence under Section 201 IPC and was acquitted of the said charge. Challenging the conviction and sentence, accused No.2 Kanhaiya Lal preferred the appeal in D.B. Criminal Appeal No.515 of 2004 and the High Court by judgment dated 17.4.2012 dismissed the appeal. Challenging the same the appellant Kanhaiya Lal has preferred the present appeal.

4. The case of the prosecution in a nut shell is as follows: PW10 Smt. Shantibai is the wife of deceased Kala. PW3 Kama is the younger brother of Kala. Accused Kanhaiya Lal is the brother of PW4 Hurma. They are all residents of Gesu ka bagh village. PW4 Hurma returned home at 8.00 p.m. on 31.8.2003. At about 9.00 p.m. accused Kanhaiya Lal and Kala came to his house and demanded Daru and PW4 Hurma gave one bottle and received a sum of Rs.15/- from the accused Kanhaiya Lal. Thereafter, both of them went away together. Kala did not return home in the night and in the morning PW10 his wife Shantibai along with PW11 Dhula went to the house of PW 4 Hurma and inquired about her husband. PW4 Hurma told them about Kala visiting his house with Kanhaiya Lal the previous night and their returning together from his house. PW 10 Shanti Bai and PW 11 Dhula went to the house of the accused Kanhaiya Lal and he was not found there. PW10.

5. Shantibai lodged a report at the Police Station about the missing of her husband. The villagers found Muffler, shoes and tobacco pouch floating in the well of accused Kanhaiya Lal. PW3 Kama lodged Ex.P10 written report before the Police Station Bichhiwara. Police took out the body of Kala from the well and a case came to be registered in Ex.P10 FIR No.230 of 2003 for the alleged offences under Section 302 and 201 IPC. PW12 Fateh Singh Chauhan took up the investigation. Ex.P11 is the spot map. Ex.P13 is the Panchayatnama. Ex.P14 is the seizure Memo of shoes, Muffler and tobacco pouch.

6. PW1 Dr. Rajesh Sharma along with Dr. Kanti Lal conducted the post-mortem and found the following injuries:

“External injuries:

1. Abrasion 5 x 2 cm on the left side of the neck.

2. Bruise 3 x 2 cm on the parietal aspect of the neck in the right side and all these injuries were anti mortem.

On the internal examination he found the fracture of Hyoid bone anteriorly.”

They expressed opinion that the cause of death of Mr. Kala is due to neurogenic shock as well as haemorrhagic shock and the time of death was from 36 to 48 hours prior to the post-mortem.

Ex.P10 is the post-mortem report issued by them.

7. The accused were arrested and on completion of the investigation final report came to be filed. In order to prove the case, the prosecution examined 15 witnesses and marked 26 documents. No witness was examined on the side of the defence. The accused were questioned under Section 313 Cr.P.C. and their answers were recorded. The trial court found accused No. 2 Kanhaiya Lal guilty of the charges under Sections 302 and 201 IPC and sentenced him as narrated above. The trial court found accused No.1 Ramam Lal not guilty of the charge –

8. and acquitted him. Accused No