( 1. ) THE appeal has been preferred by the appellants being aggrieved by the

judgment of conviction dated dated 26-7-93 passed by the Ist Additional Sessions Judge, Sehore in Sessions Trial No. 279/92 whereby the appellants have been convicted for commission of offence under Section 302/34 IPC sentencing them to undergo rigorous life imprisonment.

( 2. ) AS per the prosecution case, deceased Suresh and accused persons where residing at village Khamlaha. Deceased had accompanied the accused persons in the night, he did not came back to the house. Consequently, Kishore Singh and Munnalal went to the house of Manohar to ask about the whereabouts of Suresh. For several days they inquired from Manoharlal but he expressed ignorance as to the whereabout of deceased Suresh. They also inquired from coaccused nandlal. He also expressed ignorance as to the whereabouts of deceased Suresh. The prosecution further alleged that on 3-8-92, one Sangram Singh, son of Kamal Singh found the dead body in the well and consequently, informed to the police on 4-8-92, merg intimation was recorded, inquest of the dead body was prepared, dead body was identified by Shriram, the brother of the deceased. There were several injuries on the person of the deceased caused by sharp edged weapon. It was a case of homicidal death. The deceased on 287-92 left with accused Manohar and Nandlal and he was not seen alive. On the basis of information furnished by the accused, several articles belonging to the deceased were seized. The articles were identified belonging to the deceased. Weapon of offence and knives were recovered from the possession of the accused at their instance.

( 3. ) THE accused abjured the guilt contending that they are innocent and have been falsely implicated in the case. In defence, they did not examine any witness. Prosecution has examined in all 21 witnesses. The Trial court has convicted the appellants, aggrieved thereby the appeal has been preferred.

( 4. ) SHRI P. R. Bhave, learned Senior Counsel appearing on behalf of the appellant has submitted that in the instant case, circumstance of last seen has not been established. It has not been proved when actually the death of Suresh took place. Evidence of Mahesh (PW-4), is that only accused Manohar Singh was last seen in the company of suresh when he came to the betel shop, thereafter there is no evidence on record that accused Manohar accompanied the deceased towards the well after eating betel. The injury on the person of accused manohar Singh, in the parietal region was caused subsequently to the incident and the injury in the leg could have been caused due to several other reasons. It was not enough to create a chain of circumstances against the accused Manohar to complete it. In the absence of evidence indicating that deceased Suresh had inflicted any injury on the accused Manohar, there was nothing to infer from the injuries found on the leg of accused Manohar. Dr. Rajendra Kumar gupta (PW-7), has admitted that he did not mention the date on exhibit P-6. It was put by someone else in the red ink. Thus, injury was caused in the intervening night of 28/29-7-92 has not been established. Autopsy surgeon has opined that death took place before more than 72 hours of post-mortem, it was conducted on 4-8-92, thus, the date of incident cannot be co-related to 28/29-7-92 when the accused were last seen in the company of the deceased as per the prosecution. He has also submitted that arrest memo was drawn subsequently on furnishing of Information memos and the seizure memos at different places. It would not have been possible to draw them in the close proximity of the time, they were drawn. Thus, seizure became doubtful. Gopal (PW-12) has mentioned different place of seizure of some of the articles, thus, recovery was not made in his

presence. The memorandum under Section 27 of the Evidence Act were not recorded in his presence. His signature have been obtained in the memos. Consequently, se