The established principle is that circumstantial evidence must be conclusive and consistent to affirm the guilt of the accused beyond reasonable doubt.

1. This appeal arises out of the judgment of conviction and order of sentence dated 9-7-2003 passed by the 4th Additional Sessions Judge, (FTC), Raigarh in S.T. No. 179/2002 convicting both the appellants under S.302 and S.201 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life with fine of Rs.500/-, to undergo RI for 7 years with fine of Rs. 500/- respectively with default stipulations. Both the substantive jail sentences are directed to run concurrently.

2. Facts of the case in brief are that on 31-5-2002 at 10.00 a.m. P.W. 11 Santosh Kumar Biswas father of deceased Sanjay Biswas lodged merg intimation Ex.P - 15 before Deharamjaigarh police stating that on 30-5-2002 at about 10.30 p.m. the deceased along with accused / appellants consumed liquor and thereafter they went to Amadarha Mand river and while taking bath deceased was missing. Thereafter during search in the morning at about 8.30 hrs. the dead body of Sanjay Biswas was found in the said Amadarha Mand river. This fact was informed by others. During investigation, police prepared inquest Ex. P - 2 and thereafter the dead body was sent for post - mortem. P.W. 7 Dr. A.S. Thakur conducted autopsy and the doctor noticed vide his report Ex. P - 9 that the body is in state of rigour mortis, eyes closed, eyelid swollen, mouth partially open, no external injury is seen on body. The doctor opined that the deceased died due to mechanical asphyxia which may be as a result of obstruction to passage of air into respiration track due to causes other then constriction of neck and drowning, nature homicidal. The autopsy surgeon answered query 1, 2, 3 and 4 which are as under : -

(Vernacular matter omitted. .......Ed.)

3. Wife of the deceased P.W. 10 Sulekha Biswas lodged a written complaint alleging in it that she has doubt that her husband was killed by the accused / appellants. On 10-6-2002, Dharamjaigarh police registered FIR Ex. P - 16 and Crime No. 54/2002 against both the accused / appellants. During investigation, statements of the witnesses were recorded under S.161 of the Cr. P.C. Thereafter Police filed charge - sheet against the accused / appellants under S.302 and S.201 of the IPC followed by framing of charge by the trial Court under the same sections.

4. In order to establish the guilt of the accused / appellants, prosecution has examined 15 witnesses. Statements of the accused / appellants were also recorded under S.313 of the Cr. P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. Accused / appellants also examined one defence witness D.W. 1 Subhash Barhai who has deposed that the deceased used to consume excessive liquor. He saw the deceased in an unconscious condition and thereafter he was being treated by one Dr. Khurshid Khan who administered him drip, thereafter he regained consciousness in his house and family members also massaged on his chest with oil. He is a hearsay witness and has not said anything specific about the matter. After hearing the parties, the trial Court has convicted and sentenced the accused / appellants as mentioned above. Hence the present appeal.

5. Learned counsel for the accused / appellants submits that : -

i. Prosecution has failed to demonstrate any motive for the offence. The autopsy surgeon has not given any definite opinion and has not stated the reasons on the basis of which it can be held that the death was homicidal in nature. In absence of any reason, the opinion of the autopsy surgeon that the death was homicidal may not be accepted.

ii. The accused / appellants were not required t