MOHAMMAD RAFIQ, J.

This appeal has been filed by accused-appellants Ram Sahai and Ram Avtar challenging the judgment of Court of Sessions, Tonk dated 21.06.1991, whereby they were convicted for offence u/s.302 IPC read with Section 34 IPC and sentenced to life imprisonment with fine of Rs.100 each, in default of payment of which, they were to further undergo simple imprisonment of one month.

2. The facts of the case are that Ram Lal Son of Hardeva lodged a written report with the Police Station, Piplu on 01.08.1989 wherein it was alleged that he received an information in the village that dead body of a person was lying on the way near Deengra which proceeds to village Kutka. On receiving this information, being a member of the Gram Panchayat, he reached at that place and found dead body of Madya, resident of village Beejwad. It was also mentioned in the report that the deceased received various injuries on his person. On receiving the aforesaid information, a case for offence under Section 302 IPC was registered at Police Station, Piplu (Tonk) and investigation commenced. After completing the investigation, the Investigating Agency filed charge sheet against both the accused appellants. The trial court then framed charges against them. Both the accused-appellants denied the charges and claimed to be tried. The prosecution produced as many as 24 witnesses and exhibited 51 documents. The accused appellants were examined under Section 313 Cr.P.C. and they produced two witnesses alongwith certain documents in their defence. After hearing both the parties, the learned Sessions Judge, Tonk convicted both the accused-appellants for offence under Section 302 read with 34 IPC as stated above. Hence this appeal.

3. We have heard Shri Biri Singh, learned senior counsel assisted by Shri Rajesh Choudhary, learned counsel for accused-appellants and Smt. Sonia Shandilya, learned Public Prosecutor for the State.

4. Shri Biri Singh, learned senior counsel for the accused-appellants submitted that the prosecution has wrongly planted Gopal (PW10) as eye witness, whereas this case is though based on circumstantial evidence, but the chain of circumstances has many missing links and is not complete. In fact, he is not an eye witness. His statement under Section 161 Cr.P.C. (Ex.D6) was recorded by Investigating Officer Mahendra Singh (PW24) belatedly on 10.08.1989 i.e. nine days after the incident and there is no specific explanation about such inordinate delay. There is major discrepancy in what he has stated in the Court as PW10 that he saw the deceased being beaten by accused-appellants about 5-6 pm, whereas all the witnesses of the last seen are saying that the deceased left with the accused around 7.30-8.00 pm when it was time of dinner. This clearly raises a doubt about the credibility of his being eye witnesses. If at all, he was an eye witness, why he did not disclose this to anybody, has not been explained. It would be a case which is founded on circumstantial evidence as also on the basis of eye witnesses statement, whereas both cannot go together as one would rule out the other.

5. It is argued that the prosecution has utterly failed to prove the intention and motive on the part of the accused-appellants. The witnesses of the motive on the basis of alleged incident which took place 15-20 days back being named as Shri Lal and Ram Sahai as those who had an altercation with the deceased, but not with Ram Avtar. Even the witnesses of last seen have also not stated specifically that Ram Avtar was there with Ram Sahai at the time of incident. The case of the prosecution in so far as Ram Sahai, thus stands on weak footing. The written report (Ex.P1) on the basis of which FIR was registered was submitted by Ram Lal to Police Station at 10.20 AM on 1.8.1989 to SHO Police Station Peeplu, whereas Shri Mahendra Singh, SHO Police Station Peeplu, who was also the Investigating Officer has stated that he reached the place of occurrence at 8.30 in