ORDER

Criminal Appeal No.20 of 2017:

1. The appellants have been arraigned as accused No.1 and accused No.2. Charges had been framed against the appellants for the offences punishable under Sections 364 , 302, 506 Part-II read with Section 34 of the INDIAN PENAL CODE , 1860 (for short, 'the IPC') and Section 135(1) of the BOMBAY POLICE ACT , 1951 (for short, 'the Act, 1951'). The appellants were subsequently convicted only for the offences punishable under Section 302 read with Section 34 of the IPC.

2. The High Court by way of the impugned judgment was pleased to render an order of acquittal against accused Nos.3 to 5. Sunny, another accused died during the pendency of the trial. Accordingly, the appellants who were arraigned as accused No.1 and accused No.2 have been convicted by both the trial Court and High Court.

3. Learned counsel appearing for the appellants would submit that the evidence of PWs-2 and 4, which the High Court has relied upon while acquitting accused no.3 to 5, ought to have been followed for the appellants as well (accused No.1 and accused no.2). The witnesses to the inquest report have not been examined.

Insofar as the recovery under Section 27 of the Indian EVIDENCE ACT , 1872 is concerned, the witnesses have turned hostile. The doctor who was examined on behalf of the prosecution has clearly deposed that the deceased could have died from a fall, as he was heavily under the influence of alcohol. Though, the bloodstains found on the material object recovered have been tallied with the blood of the deceased, inasmuch as the recovery has not been proved in the manner known to law, no reliance can be placed upon the same. The High Court, in the impugned judgment, did not take into consideration the relevant material, particularly, the fact that the charge under Section 364 and those under the provisions of the Act, 1951 along with Section 506 Part-II of the IPC were found to have not been proved. Therefore, the present case is one where the evidence of PWs-2 and 4 with respect to their presence at the place of occurrence cannot be relied upon.

4. Learned counsel for the appellants has also brought to the notice of this Court that strangely, the first information report that had been given has not even been registered at the first instance. Furthermore, there is no adequate explanation, especially in the teeth of the statement given by the Investigating Officer himself, specifically pertaining to the discrepancy with respect to the timing of the registration, as it appears that the FIR was not registered immediately after the complaint was given to the concerned Station Officer. Therefore, it is a fit case where the benefit of doubt extended to the other accused persons will have to be extended to the appellants as well.

5. Learned counsel for the appellants further submits that the appellants have undergone nearly 10 years of incarceration and their conduct in the prison is found to be satisfactory.

6. The learned counsel appearing for the State submits that both the Courts have appreciated the evidence and rendered concurrent findings of conviction, at least insofar as the appellants are concerned. The benefit of doubt has been extended to the other accused persons after taking note of the contradiction in the statements made by PW-3, vis-a-vis PW-2 and 4. However, all the witnesses have deposed in unison against these appellants - a difference that has been clearly taken note of by the High Court in the impugned judgment. Though, the recovery is stated to have not been proved, particularly in view of the witnesses turning hostile, the fact remains that the Chemical Analysis Report of the blood