The appellant was tried with 4 others and was convicted under Sections 394, 460 and 302 read with Section 34 of the Indian Penal Code, 1860 .He was also found guilty of offences under Sections 11 and 13 of the Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam, 1981. The appellant was, in fact,sentenced to death for the offence under Section 302 read with Signature Not Verified Digitally signed by GULSHAN KUMAR Section 34 of the IPC along with two other accused ARORA Date: 2020.05.29 16:57:08 IST Reason: apart from a fine of Rs.5000/-. He was sentenced to 10 years Rigorous Imprisonment in regard to the offence under Section 460 of the IPC. He was also handed down a sentence of 10 years for the offence under Section 394 read with Section 34 of the IPC. Still further, he was also sentenced to 7 years for the offence under Sections 11 and 13 of the Madhya Pradesh Adhiniyam. By the impugned judgment, the High Court answered the death reference by holding that in the circumstances, the death penalty was not warranted. In place of death penalty, the High Court sentenced the appellant and two other accused to life imprisonment and enhanced the fine to Rs.25,000/-. The appeal filed by the appellant was dismissed otherwise. The prosecution case, in brief, appears to be as follows: On 08.09.2008, in the night, Bharosilal (hereinafter referred to as, ‘the deceased’, for short) was at his village Bilaua. He was residing alone. One Abhay Sharma-PW9, who is theson of the deceased, was informed by one Neeraj Bhargav that his father has not opened the door on that day. On receiving such information, PW9, who also turned out to be  the complainant, finally went to his father’s residence and it was found that his father was dead and the First Information Report(FIR) was lodged on 10.09.2008. On the basis of the investigation conducted,Kalli, Hariom, Veeru, Virendra and the appellant came to be charged with the offences as noticed. In fact, the appellant was charged under Section 397 of the IPC also. PW1 to PW15 were examined as prosecution witnesses. Material objects were also produced. The following are the questions, which were framed by the Trial Court: “(i) Whether accused Kalli @ Gopal Sharma, Sonu @ Sunil and Hariom on the date of incident after sunset and before sunrise after committing house tress pass in there sidential house of deceased Bharosilal, committed the murder of Bharosilal? (ii)Whether accused Kalli @ Gopal Sharma, Sonu @ Sunil and Hariom formed common intention to commit murder of Bharosilal? (iii) Whether accused Kalli @ GopalSharma, Hariom and Sonu @ Sunil in fulfilment of their common intention committed murder of Bharosilal by strangulation and cutting by a chhuri(knife)?  (iv) Whether accused Kalli @Gopal Sharma, Hariom and Sonu @ Sunil by using deadly weapon in committing robbery, committed the murder of Bharosilal and looted gold and silver jewellery and two mobile phones of Nokia made from the possession of Bharosilal? (v) Whether accused Veeru and Virendera along with accused Kalli @Gopal Sharma, Hariom and Sonu @ Sunil, at the house of accused Virendra Singh,Kushmah hatched conspiracy of committing robbery in the house of Bharosilal?(iv) Whether the accused persons committed the offence defined and specified under Section 2(b) of MPDVPK Act and committed the offence u/s 11/13 of the above said Act?”4. The cause of death was found to be shock and hemorrhage due to excessive bleeding caused by multiple wounds. The death was caused within 36 hours of the postmortem report. The postmortem was conducted on 10.09.2008. It cannot be disputed that the death was homicidal and it was caused with the intent to commit murder. The Trial Court further proceeded to find that the certain articles were found missing from the almirah in the house where the deceased stayed. PW8 is wife of the deceased. PW9, as already noticed, is one of the sons of the deceased. PW13 held identification of the gold and silver jewellery and the mobile phones, which according to them, belonged to the deceased. The identified articles were belonging to the deceased. One hasli(necklace) made of silver, one pair of earrings and two mobile phones were identified. The contention of the accused that PW13, who held the identification proceedings, deposed that at that time a Police Officer was present, was rejected by finding that from the Identification Memo-Exhibit P21, it was clear that no Police Officer was present at the time of the identification of the proceedings.

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Thus, in this case, as far as the appellant is concerned, the evidence against him essentially consists of the recovery of the mobile phone and there is discrepancy about the number which we have noted. PW5 has not taken the name of the appellant. Essentially evidence of PW5 and the recovery is relied on to hold that the chain of circumstances is complete. We have noticed the testimony of PW5. The appellant is 2004 (3)SCC 793 not mentioned as one of the persons who used to visit the deceased’s father though three of the other accused were named, viz., Veeru, Kalli and Virendra. There is complaint from the appellant that no Test Identification Parade was conducted for the accused.We have referred to what PW5 has deposed.

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In the facts of this case, we are inclined to think that it would not be safe to uphold the conviction of the appellant. He would be entitled to the benefit of doubt. We allow the appeal. The impugned judgment in so far as it relates to the appellant will stand set aside and he will stand acquitted. The appellant’s bail bond shall stand discharged. He will be set at liberty if his custody is not required in connection with any other case.

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