JUDGMENT : Rajani Dubey, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 16.07.2014 passed by learned 1 st Additional Sessions Judge, Raigarh (C.G.), in S.T. No.118/2011 whereby and whereunder appellants have been held guilty for commission of offence and sentenced as described below :- CONVICTION SENTENCE Under Section 302/34 IPC Imprisonment for life with fine of Rs.15,000/- each, in default of payment of fine amount to undergo additional R.I. for 06 months. Under Section 201/34 IPC R.I. for 07 years with fine of Rs.5,000/- each and in default of payment of fine amount, to undergo additional R.I. for 03 months. Both the sentences were directed to run concurrently. 2. The prosecution story, leading to conviction of the accused/appellants is that on 09.05.2011 at about 8:15 p.m., the accused persons, wearing masks and due to prior enmity, threw acid on the face and front part of the body of Krishna Bareth at his shop, as a result of which Krishna Bareth sustained serious injuries and was admitted to the hospital for treatment. In this connection, upon receiving the information from the hospital regarding admission of Krishna Bareth due to acid attack, the police station Kotwali registered a case against unknown accused persons under Sections 307/34 of the IPC, and investigation was initiated. During the course of treatment, Krishna Bareth died, and thereafter, in continuation of the investigation, Inspector Arjun Ram (PW-16) registered the final report by adding Sections 302/34 IPC. Prior to this, Sub-Inspector R. K. Kesharwani (PW-13) had registered the zero numbered FIR under Ex.P-1. A written request was made for the medical examination of injured Krishna Bareth vide Ex.P-17, and a request was also submitted to the SDM for recording the dying declaration of the injured vide Ex.p-18. The spot map was prepared vide Ex.P-19. From the scene of occurrence, in the presence of witnesses, cement-plastered wall material showing acid splashes was scraped and seized in a plastic container, along with plain soil vide seizure memo Ex.P-12. On 10.05.2011, the clothes worn by the injured at the time of the incident were seized vide Ex.P-13. 3. During the course of investigation, statements of Krishna Bareth (injured), Ramesh Jaiswal, Vijay Chauhan, Pappu alias Satish, Sitaram Sahu, R. K. Bareth, Santosh Kumar, Devatt Sahu, Smt. Shyamabai, and Sanjay Sharma were recorded as stated by them. On 10.05.2011, the clothes worn by the injured at the time of the incident were seized vide Ex.P-13. 3. During the course of investigation, statements of Krishna Bareth (injured), Ramesh Jaiswal, Vijay Chauhan, Pappu alias Satish, Sitaram Sahu, R. K. Bareth, Santosh Kumar, Devatt Sahu, Smt. Shyamabai, and Sanjay Sharma were recorded as stated by them. Accused Sheetal Bareth (A-1) and Sunil Bareth (A-2) were taken into custody, and their memorandum statements were recorded vide Ex.P-07 and P-8 respectively, in which the accused disclosed that they could get the motorcycle used at the time of the incident recovered. On the basis of the said disclosure statement, the motorcycle bearing registration No. CG-11 CA-7067, used in the commission of the offence, was seized vide Ex.P-09. The accused persons were arrested vide Ex.P-10 and P-11. A written request for the medical examination of accused Sunil Kumar Bareth was made on 31.05.2011 vide Ex.P-22. Further, a memorandum was submitted to the Tehsildar for preparation of patwari map vide Ex.P-23. 4. After completing usual investigation, charge sheet was filed against the accused-appellants under Sections 302, 201 read with section 34 of IPC, to which the accused-appellants abjured their guilt and pleaded for trial. 5. After filing of the charge sheet, the learned trial Court framed charges against the appellants under Sections 302 read with section 34 and 201 read with section 34 of the IPC. 6. So as to hold the accused-appellants guilty, the prosecution has examined as many as 17 witnesses. Statements of the accused-appellants were also recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. No defence witness was examined in this case. 7. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused- appellants as mentioned in para 1 of this judgment. Hence, this appeal. 8. Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence is bad, illegal and unsustainable in the eye of law and deserves to be set aside. The prosecution has failed to establish the identity of the appellants as their faces were covered and no one identified them. Hence, this appeal. 8. Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence is bad, illegal and unsustainable in the eye of law and deserves to be set aside. The prosecution has failed to establish the identity of the appellants as their faces were covered and no one identified them. Learned counsel further submits that the FIR was lodged against an unknown persons for the offence under Section 307 of IPC and the deceased died after more than a month, therefore, offence under Section 302 would not be application in the case. The conviction of the appellant is based on dying declaration of deceased Krishna Bareth but the deceased has not raised allegation against the accused persons or any other person. Further, ground of conviction is that the deceased was going to marry a girl with whom the appellant No.1-Sheetal Bareth wanted to marry and they both were in relationship but the said girl has not deposed anything against the accused persons and that she even did not know the. The prosecution has utterly failed to prove its case beyond all reasonable doubt. Therefore, the accused-appellants may be acquitted giving benefit of doubt. In support of her submission, learned counsel placed reliance on the decisions of this Hon’ble Apex Court in the matter of Anwar Ali & Anr. Vs. State of Himachal Pradesh reported in (2020) 10 SCC 166 , Shivaji Chintappa Patil Vs. State of Maharashtra reported in (2021) 5 SCC 626 Yogesh Vs. State of Haryana reported in (2021) 5 SCC 730 and Nagendra Sah Vs. State of Bihar reported in (2021) 10 SCC 725 . 9. On the other hand, learned counsel for the State submits that the learned trial Court after appreciating oral and documentary evidence has rightly convicted the accused- appellants and no interference is called for by this Court. The appeal has no merit and the same deserves to be dismissed. 10. We have heard learned counsel for the parties and perused the material available on record. 11. It is apparent from the record of the learned trial Court that charges under Sections 302/34 and 201/34 of IPC were framed against the appellants and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellants accordingly & sentenced them as described in para 01 of this judgment. 12. 11. It is apparent from the record of the learned trial Court that charges under Sections 302/34 and 201/34 of IPC were framed against the appellants and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellants accordingly & sentenced them as described in para 01 of this judgment. 12. The first question which arises for consideration before this Court whether the death of deceased Jalbai was homicidal or not. 13. With respect to homicidal death of deceased Krishna Bareth, the prosecution has examined Dr. Sunil Kalda (PW- 12), Dr. S.K. Bagh (PW-14) and Dr. Prakash Chetwani (PW-15). 14. Dr. Sunil Kalda (PW-12) has stated that he is operating Kalda Cosmetic Surgery Institute and Burn Center for last 15 years. On 10.05.2011, injured Krishna Bareth was referred from Community Health Center, Raigarh to his hospital for treatment. Injured Krishna Bareth’s condition was serious due to acid burn and he was admitted in his hospital for treatment vide Ex.P-15. He has also submitted that on 13.06.2011, Krishna Bareth died during the course of treatment and in this regard, he issued a certificate vide Ex.P-16 and information of which was forwarded to S.H.O., Police Station Saraswati Choubey Colony, Raipur. This witness has admitted his signature in all documents on ‘A to A’ part. According to this witness, the condition of deceased was very critical due to burn by acid. 15. Dr. S.K. Bagh (PW-14) is the autopsy surgeon. He has stated that on 13.06.2011, the dead body of deceased was brought before him by constable for postmortem examination and upon examining he found following injuries/symptoms and gave his report under Ex.P-24 :- (i) Both eyes were closed and the mouth was partially open. On removal of the bandages, burn injuries were found on the following parts of the body: (ii) The face; hair above both ears showing a singeing effect; the lower surface of the chin; and the neck, where signs of trickling of a liquid substance (flash) were present. Burn injuries were also present on the outer surfaces of both hands, both shoulders, and the lower part of the back. Other parts of the body were healthy. (iii) Burn were sufficient to cause death in an ordinary course of nature. The autopsy surgeon opined that the death was due to cardio-respiratory failure as a result of burn (wet). Burn injuries were also present on the outer surfaces of both hands, both shoulders, and the lower part of the back. Other parts of the body were healthy. (iii) Burn were sufficient to cause death in an ordinary course of nature. The autopsy surgeon opined that the death was due to cardio-respiratory failure as a result of burn (wet). The duration of death was within 24 hours prior to post mortem examination. 16. The autopsy surgeon has admitted this suggestion that he had not mentioned in his report about the burn injuries/wounds found on the body that how old those burn injuries were. He did not provide any medical treatment to deceased, Krishna Bareth. At the time of conducting the post-mortem examination, he did not see any treatment records, as the police officials did not produce the same before him; therefore, he cannot tell for how long the deceased was treated or by whom. He has admitted that a burn victim may also die due to the spread of infection during the course of treatment and he did not assess or mention the percentage of burns in his report Ex. P-24. It has been admitted by autopsy surgeon that he had not specifically mentioned in his report Ex.P-24 that the burn injuries found on the body of the deceased were ante- mortem in nature. He has also admitted that in cases of burns, merely on the basis of a post-mortem examination, it is not possible to determine whether the death was homicidal, suicidal, or accidental and for this reason, he had not mentioned the time since death in Ex. P-24, as it was not possible to determine the same. 17. After considering the overall testimonies of doctors and the medical reports given, it is apparent that all the burn injuries sustained by the deceased were due to acid, and the numbered FIR (Ex.P-23) also states that two unknown persons threw acid on deceased. Further, doctor (PW-12) has also stated that he found burn injuries caused due to acid. Thus, looking to the statement of both the doctors and postmortem report (Ex.P-24), it has been found proved that the death of deceased Krishna Bareth was homicidal in nature. 18. The next question which arises for consideration by this Court whether the appellants are the author of crime or not. 19. Thus, looking to the statement of both the doctors and postmortem report (Ex.P-24), it has been found proved that the death of deceased Krishna Bareth was homicidal in nature. 18. The next question which arises for consideration by this Court whether the appellants are the author of crime or not. 19. The learned Trial Court convicted the accused/appellants on the basis of testimonies of Devdatt Sahu (PW-3) and Sita Ram Sah (PW-11). 20. Devdatt Sahu has stated in para 3 of his examination-in-chief that on 19.03.2011 at 8.00 pm, deceased Krishna Bareth called him on the phone and informed that some boys were coming from Champa–Seoni who would give him (deceased) some information regarding his fiancée. Deceased Krishna Bareth asked him (this witness) to come to Raigarh Railway Station. Sitaram (PW-11) also accompanied him. Deceased Krishna, Sitaram, and this witness, all left together from Krishna’s shop for Raigarh Railway Station. After reaching Raigarh Railway Station, leaving Krishna there, Sitaram and this witness went to betel shop. Thereafter, deceased Krishna Bareth sat on a motorcycle with the boys who had arrived and went to the community hall at Mitthumuda. After that, deceased Krishna Bareth sent them SMS on the mobile phone stating that he was with the boys who had come from Champa–Seoni at the community hall, Mitthumuda, and asked them to come there, as his fiancée related matter was being discussed. He has also stated that thereafter, Sitaram and this witness reached near the community hall at Mitthumuda, where they shook hands with Krishna and the two boys who had come from Champa–Seoni. One of the boys introduced himself as Sheetal Bareth (A-1), and the other introduced himself as Sanju Sharma. Thereafter, they also shook hands with deceased Krishna and pretended that they were strangers to him (deceased) Thereafter, the two boys who had come from Champa–Seoni had a bottle of liquor in their bag, but they did not have disposable glasses or a water bottle. One of them, Sanju Sharma, went to bring disposable glasses and a water bottle. At that time, they told Sanju Sharma that they also wanted to drink beer, so he should also take them along. Accordingly, Sitaram sat on a motorcycle with Sanju Sharma and went to bring beer. One of them, Sanju Sharma, went to bring disposable glasses and a water bottle. At that time, they told Sanju Sharma that they also wanted to drink beer, so he should also take them along. Accordingly, Sitaram sat on a motorcycle with Sanju Sharma and went to bring beer. During that time, the boy from Champa–Seoni who had introduced himself as Sheetal Bareth (A-1), and deceased Krishna Bareth started talking to each other and he (this witness) was standing at some distance near his motorcycle. After that, Sanju Sharma and Sitaram, who had gone to bring beer and water bottles, returned. Sitaram came near his vehicle, and Sanju Sharma went to the place where deceased Krishna Bareth and accused Sheetal Bareth (A-1) were standing. He and Sitaram also consumed beer, and deceased Krishna Bareth, accused Sheetal Bareth, and Sanju Sharma also consumed liquor. Deceased Krishna Bareth, accused Sheetal Bareth (A-1), and Sanju Sharma had cigarettes with them. Since Sitaram and he did not have cigarettes, he used to go intermittently to deceased Krishna Bareth, accused Sheetal Bareth, and Sanju Sharma to take cigarettes and matchsticks. He has also stated that thereafter, after about one hour, Sanju Sharma and accused Sheetal Bareth left, and the deceased Krishna Bareth came to us. We asked deceased Krishna Bareth as to what discussion had taken place then Krishna told them that the boys who had come from Champa–Seoni were saying that accused Sheetal Bareth (A-1) had an affair with his (deceased’s) fiancée and that he should not marry her. At that time, Sitaram and he told Krishna to inform his family members about this matter. Then deceased Krishna said that his engagement had already taken place, and if he informed his family, his marriage would be broken and the girl would be defamed; therefore, he would not tell anyone and asked them also not to disclose the matter. Thereafter, they all went to their respective homes. This witness has also stated that after 4- 5 months prior, the identification parade was conducted in the Tehsil Office, Ramgarh. During the identification parade, two other persons were also present. About seven persons were made to stand during the identification parade and he identified accused Sheetal Bareth by touching his head with his (this witness) hand. The identification memo is Ex. P-6 and he admits his signature in it on ‘A to A’ part. During the identification parade, two other persons were also present. About seven persons were made to stand during the identification parade and he identified accused Sheetal Bareth by touching his head with his (this witness) hand. The identification memo is Ex. P-6 and he admits his signature in it on ‘A to A’ part. This witness, in para 19 of his cross-examination, has stated that while recording his statement, he had disclosed the police that two boys who had come from Champa-Seoni, were saying that Sheetal Bareth (A-1) had affair with the fiancee of deceased Krishna Bareth and do not perform marriage with her, but if the said statement is not find place in his police statement, he cannot tell the reason. 21. Sita Ram Sah (PW-11) has made almost similar statement as has been made by Devdatt Sahu (PW-3) that deceased Krishna Bareth called him and when he went to the betel shop of deceased Krishna Bareth he told me that two boys were coming from Champa and they wanted to meet him (deceased) in alone. He has also stated that deceased Krishna Baresh told him that he had called Devdatt Sahu (PW-3) also and they all together would go to Railway Station Raigarh. He has also stated that he and Devdatt Sahu (PW-3) left deceased Krishna Bareth at Railway Station and went to betel shop and after 10-15 minutes, Devdatt Sahu received SMS of deceased Krishna Bareth, The message stated that they were behind the community hall and asked them to come there and meet as if they were strangers. Thereafter, they went to the open ground behind the community hall, where they shook hands with deceased Krishna Bareth, accused Sheetal Bareth (A-1), and one boy who introduced himself as Sanju Sharma. After shaking hands, they moved back to some distance. Sheetal Bareth (A-1) and Sanju Sharma were carrying a bottle of liquor with them, but they did not have water or disposable glasses and were going to arrange the same. He went along with Sanju Sharma, returned with him, and brought beer bottles, water, and other items with them. He has also stated that Sheetal Bareth (A-1), Sanju Sharma, and deceased Krishna Bareth sat separately and consumed liquor, while he and Devdutt (PW-3) sat at some distance and consumed beer. From time to time, they went to deceased Krishna Bareth to take cigarettes and other items. He has also stated that Sheetal Bareth (A-1), Sanju Sharma, and deceased Krishna Bareth sat separately and consumed liquor, while he and Devdutt (PW-3) sat at some distance and consumed beer. From time to time, they went to deceased Krishna Bareth to take cigarettes and other items. The discussion between deceased Krishna Bareth, Sheetal Bareth (A-1), and others continued for about one hour, after which they left. After Sheetal Bareth (A-1) and Sanju Sharma had left, deceased Krishna Bareth told him and Devdutt Sahu (PW-3) that the persons who had come from Seoni-Champa had stated that the girl to whom deceased Krishna Bareth was engaged, was loved by the accused Sheetal Bareth (A-1), and that deceased Krishna Bareth should not marry her. Thereupon, he (this witness) advised deceased Krishna Bareth to inform his family members about this matter. However, deceased Krishna Bareth refused and stated that his engagement had already taken place and that if the marriage was broken, the girl would be defamed; therefore, he asked them not to disclose this matter at his home. Thereafter, they all went to their respective homes. He has also stated that subsequently, acid and similar substances were thrown on Krishna Bareth. He also went to the Government Hospital, where deceased Krishna Bareth was admitted to the ICU. The chest, face, hands, and legs of Krishna Bareth were completely burnt. Thereafter, at about 2:00–2:30 a.m., Krishna Bareth was referred to Raipur. Krishna Bareth died due to the acid burns. He has also stated that he identified accused Sheetal Bareth in test identification parade vide Ex.P-6 and admits his signature in Ex. P-6 on ‘C to C’ part. Both the witnesses (PW-3 and PW-11) have stated that the incident of meeting with accused Sheetal Bareth and one Sanju Sharma was of 19.03.2011 and the date of incident is 09.05.2011. 22. Vijay Chouhan (PW-1) is the eye witness to the incident. He has stated that the incident took place on 09.05.2011 at about 8:00–8:15 p.m. At that time, the deceased Krishna Bareth was at his betel shop situated at Durga Chowk, Mittumudda. He (this witness) was sitting on his motorcycle at a distance of about 20–26 feet from the deceased’s shop and was talking on his mobile phone. His attention was towards the betel shop of the deceased Krishna Bareth. At that time, two unknown persons arrived on a motorcycle covering their faces with cloth. He (this witness) was sitting on his motorcycle at a distance of about 20–26 feet from the deceased’s shop and was talking on his mobile phone. His attention was towards the betel shop of the deceased Krishna Bareth. At that time, two unknown persons arrived on a motorcycle covering their faces with cloth. One of them got down from the motorcycle, went to the shop of the deceased Krishna Bareth, and from the front of the counter threw some inflammable substance on Krishna Bareth. Immediately thereafter, the two persons, who had arrived on the motorcycle with their faces covered, fled on the motorcycle towards the FCI godown. This witness has also stated that as a result of the throwing of the inflammable substance, the face, chest, hands, and legs of Krishna Bareth were burnt. Thereupon, deceased Krishna Bareth came out of his shop and went to the adjacent bicycle shop of Jaiswal, where he told the shopkeeper that someone had thrown an inflammable substance on his body and fled. Thereafter, deceased Krishna Bareth went to a nearby salon shop of Santosh and said to pour water on him as his body was burning. Krishna Bareth also requested that he be taken to his house then Santosh Shrivas seated him on a bicycle and took him to his house. Thereafter, he followed behind on his motorcycle and reached Krishna Bareth’s house. Subsequently, Krishna Bareth told his mother that someone had thrown some substance on his body, that his body was burning, and that he should be taken to the hospital. Thereupon, the mother of the deceased asked him (this witness) to take Krishna Bareth to the hospital. Accordingly, he seated Krishna Bareth on his motorcycle and took him to the District Hospital, Raigarh. Krishna Bareth was then admitted to the hospital. The doctors wrote prescriptions, and the medicines were brought and given to him. In the meantime, the father of the deceased Krishna Bareth arrived. He has also stated that thereafter, the father of Krishna Bareth, after meeting his son, told him (this witness) that they should go to the police station to lodge a report. Accordingly, he and the father of Krishna Bareth went to Police Outpost Jute mill at about 2:00 a.m. and lodged a report (Ex.P-1) regarding the incident and he admits his signature in Ex.P-1 on ‘A to A’ part. Accordingly, he and the father of Krishna Bareth went to Police Outpost Jute mill at about 2:00 a.m. and lodged a report (Ex.P-1) regarding the incident and he admits his signature in Ex.P-1 on ‘A to A’ part. He has also stated that the police recorded the report with the facts as stated by him. This witness has also stated that the patwari prepared spot map vide Ex.P-3 and prepared panchanama vide Ex.P- 2, wherein this witness admits his signature on ‘A to A’ part. This witness in para 12 of his cross-examination, has stated that : ^^ ;g ckr lgh gS fd tks 2 vKkr O;fDr ?kVuk ds le; d`”.kk ds nqdku ds lkeus vk;s Fks rFkk dksbZ Toyu’khy inkFkZ Qsaduk eSus crk;k gS] og 2 O;fDr dgka ds Fks ;g ugh crk ldrk vkSj u gh eS mUgs tkurk gwaA^^ 23. This witness (PW-1), in para 14 of his cross-examination, has admitted that he did not try to catch two unknown persons who had come on motorcycle and denied that there is always dark on the road in from of deceased’s shop. In para 16, he has admitted that he does not know how acid got on deceased Krishna Bareth or who threw the acid on him. Further, in para 24, this witness has admitted that deceased Krishna Bareth had not recognized the two unknown persons who had come on motorcycle and he had also not recognized anyone on the place of occurrence. 24. K. R. Bareth (PW-2) is the father of deceased Krishna Bareth. He has stated that on 09.05.2011, he was returning to his home at Mittumuda at about 8:30 p.m. from his office, Krishi Upaj Mandi, Patelpali, Raigarh. At Durga Chowk, Mittumuda, there is a betel shop belonging to his son, deceased Krishna Bareth. When he reached the shop, the incident had already taken place, a crowd had gathered, and the persons present there told him that two persons had arrived on a motorcycle, had sprinkled some inflammable substance on his son Krishna Bareth inside the shop, and had fled. When he went inside the shop, he saw that the inflammable substance had spread on the floor and had also splashed onto the walls of the shop. In the meantime, he received a phone call from his house asking him to come home immediately, stating that acid had been thrown on Krishna. When he went inside the shop, he saw that the inflammable substance had spread on the floor and had also splashed onto the walls of the shop. In the meantime, he received a phone call from his house asking him to come home immediately, stating that acid had been thrown on Krishna. Without closing the shop, he went straight to his house, where he saw that a crowd had gathered and was informed that Krishna had been taken to the hospital. Thereafter, he immediately went on a motorcycle to the District Hospital, Raigarh, where his son was undergoing treatment. There were acid burn marks on his son’s face, neck, chest, abdomen, and thighs, and the skin had turned black. The doctors had already started the treatment. His son Krishna Bareth was screaming and groaning due to severe burning pain. During the night, the doctors advised that Krishna Bareth be taken to Raipur for further treatment. Thereafter, he hired a vehicle and took Krishna Bareth to Kalda Cosmetic Hospital, Raipur. He reached Kalda Cosmetic Hospital, Raipur, at about 6:00 a.m. the next morning, where Krishna was admitted and treatment was commenced. While the treatment was continuing at Raipur, his son Krishna Bareth died on 13.06.2011 at about 10:00 a.m. He has also stated that he came to know that accused Sheetal Bareth and Sunil Bareth were involved in acid attack. This witness, in cross-examination, has admitted in para 9 that he recognized the accused persons by name after being arrested by the police. In para 18, this witness has admitted that after reaching hospital, he did not receive information from anyone that who had thrown inflammable substance on his son deceased Krishna Bareth. 25. Pappu @ Satish Yadav (PW-4) has stated that his betel shop is situated at Mittumuda Chowk near the Durga Pandal, where he was sitting at the relevant time. Deceased Krishna Bareth also had a betel masala shop nearby. The incident took place at about 7:45–8:00 p.m. In front of his shop, ward member Vijay Chauhan was present and was talking to someone on his mobile phone. Thereafter, two boys arrived on a motorcycle with their faces covered with cloth. They suddenly came, stopped the motorcycle while keeping the engine running, and were carrying something in a bottle. One of the boys threw some substance from the bottle onto Krishna Bareth. Thereafter, two boys arrived on a motorcycle with their faces covered with cloth. They suddenly came, stopped the motorcycle while keeping the engine running, and were carrying something in a bottle. One of the boys threw some substance from the bottle onto Krishna Bareth. Within 4–5 seconds, Krishna Bareth started screaming and went towards the adjacent bicycle shop, saying that he was experiencing burning in his mouth and face and that someone had poured something on him. Thereafter, he ran towards the shop of Santosh. He has stated that out of the two boys who had arrived with their faces covered, one of them alone threw the substance on the face of deceased Krishna Bareth. In cross- examination, this witness has stated from where two persons came and who were they could not be identified. 26. Vijay Kumar Chouhan (PW-5) is the witness of memorandum statement (Ex.P-7) of accused Sheetal Bareth. He has stated that the police had recorded the memorandum statement of accused Sheetal Bareth (A-1), wherein he disclosed that the vehicle by which he had come, had kept in his house at village Seoni, and he admitted his signature in memorandum (Ex.P-7) on ‘A to A’ part. He has also stated that the police had also recorded memorandum statement (Ex.P-8) of accused Sunil Bareth (A-2), wherein he had disclosed that the vehicle by which they had come, had kept in the house of Sheetal Bareth (A- 1), and admitted his signature in Ex.P-8 on ‘A to A’ part. He has also stated that the police had seized motorcycle vide seizure memo Ex.P-9, wherein he admits his signature on ‘A to A’ part. According to the memorandum of accused persons, the police recovered motorcycle Hero Honda CD Deluxe bearing registration No. CG-11-CA-7067 and the police arrested the accused persons vide Ex.P-10 and P-11 and admits his signature thereon on ‘A to A’ part. 27. Anil Kumar Chouhan (PW-6) is also witness to memorandum of accused persons and seizure memo. This witness has also admitted his signature on memorandum (Ex.P-7, P-8), seizure memo (Ex.P-9) and arrest memo (Ex.P-10 and P-11). 28. 27. Anil Kumar Chouhan (PW-6) is also witness to memorandum of accused persons and seizure memo. This witness has also admitted his signature on memorandum (Ex.P-7, P-8), seizure memo (Ex.P-9) and arrest memo (Ex.P-10 and P-11). 28. Accused Sheetal Bareth (A-1) in his memorandum statement (Ex.P-7) has disclosed as under :- ^^-------------- fnukad 9@5@2011 dks esjs QqQsjk HkkbZ lquhy cjsB dks crkdj fd d`”.kk ugh eku jgk gS pyks mldk psgjk gh tyk nsrsa gS vkSj pkaik ls 40 #i;s dk rstkc [kjhns vkSj ,d cjuh uqek ‘kh’kh esa ysdj vius eksVj lk;dy ghjks gks.Mk lhMh MhyDl lhth&11&lh,&7067 ls jk;x vk;s ge nksuks vius psgjs dks xeNk ls cka/ks gq, Fks d`”.kk vius nqdku esa vdsys cSBk Fkk lquhy eksVj lk;dy ls mrj dj nqdku ds ikl x;k vkSj rstkc dks mlds mij Qsadk vkSj ge nksuks eksVj lk;dy ls Hkkx x;s rstkc dk fNaVk lquhy ds nkfgus gkFk es iMk Fkk tks ty x;k gS jkLrs esa tkrs le; cjuh uqek ‘kh’kh dks Qsad fn;s Fks rFkk nksuks ds xeNk dks tyk fn;s Fks eksVj lk;dy flouh esjs ?kj esa j[kk gwW pyks pydj cjken djk nsrk gwWA^^- 29. Likewise, another accused Sunil Baareth (A-2) in his memorandum statement (Ex.P-8) has disclosed as under :- ^^-------------- esjk HkkbZ f’kry cjsB fdlh Hkh gkyr esa e/kq dks ikuk pkgrk gS tks ge nksuks lksps fd vxj d`”.kk ds Åij rstkc fNMd nsaxs rks ‘kknh ugh gksxk vkSj fnukad 9@5@2011 pkaik ls 40 #i;s dk rstkc lksuk lkQ djus ds uke ij [kjhns Fks vkSj ‘khry dh eksVj lk;dy ghjks gks.Mk lhMh MhyDl lhth&11&lh,&7067 ls ge nksuksa jk;x vk;s eksVj lk;dy dks ‘khry pyk jgk Fkk ge nksuks xeNk ls psgjk dks cka/ks gq, Fks jkr djhc 8 cts eksVj lk;dy dks lh/ks d`”.kk ds nqdku ds ikl ykdj [kMh fd;k eS mrjdj nqdku ds dkmaVj ds ikl x;k vkSj rstkc d`”.kk ds Åij Qsadk vkSj rqjar xkMh ds ihNs cSBdj nksuks Hkkx x;s rstkc fNMdrs le; esjs nkfgus gkFk ty x;k gS jkLrs esa cjuh uqek rstkc ‘kh’kh dks Qsad fn;k Fkk rFkk jkLrs esa gh nksuks ds xeNk dks tyk fn;s Fks ftldk LFkku [;ky ugh gSA eksVj lk;dy f’kry ds ?kj esa j[kk gS pyks pydj cjken djk nsrk gwWA^^- 30. On the basis of aforesaid memorandum statements of accused persons, the seizure was affected vide Ex.P-9, according to which, one Hero Honda CD Deluxe motorcycle bearing registration No.CG-11-CA-7067 was seized by the police. According to the aforesaid memorandum statements of the accused persons, they went to Raigah on motorcycle and threw acid on deceased Krishna Bareth but except the seizure of this motorcycle, no recovery of other incriminating material/articles have been made by the prosecution. 31. It is clear from the evidence of eye-witness (PW- 1 and PW-4) that they saw two unknown persons approaching deceased Krishna Bareth and thereafter threw acid on him with their faces covered by cloth. According to the zero numbered FIR (Ex.P-1) registered at police station – Jutemill, Raigarh, two unknown persons threw inflammable substance on deceased Krishna Bareth. The said FIR was registered on 09.05.2011 and the memorandum statements of both the accused persons were recorded on 30.05.2011 and the test identification parade was conducted on 31.05.2011 vide Ex.P-6 and deceased Krishna Bareth died on 13.06.2011. According to the prosecution, accused Sheetal Bareth (A-1) was in love affair with fiancee of deceased Krishna Bareth but Ku. Madhu Bareth (PW-9), the fiancee of deceased, has denied the story and she only stated that on 28.1.2011 she got engaged with deceased Krishna Bareth and their marriage was to be solemnized on 15.05.2011. She has also stated that on 10.05.2011, there was call from father of deceased Krishna Bareth who informed that somebody had thrown acid on deceased Krishna Bareth. Thereafter, her uncle and father went to Raipur Hospital to see deceased Krishna Bareth. She has also stated she had no relation with accused Sheetal Bareth (A-1) and the claim being made by accused Sheetal Bareth (A-1) about love affair with her is false. In cross- examination, this witness has stated that accused Sheetal Bareth (A-1) never told her that she was in love affair with him (accused) and she never heard anything like this from anyone regarding a love affair. 32. Ram Karan Bareth (PW-8) is the father of Madhu Bareth (PW-9), fiancee of deceased. In cross- examination, this witness has stated that accused Sheetal Bareth (A-1) never told her that she was in love affair with him (accused) and she never heard anything like this from anyone regarding a love affair. 32. Ram Karan Bareth (PW-8) is the father of Madhu Bareth (PW-9), fiancee of deceased. He has stated that last year after 1-2 days of holi festival, deceased Krishna Bareth had called him on phone and told that accused Sheetal Bareth (A-1) had come to him (deceased) and threatened him saying that he should not marry Madhu (PW-9), to which, he (this witness) told him (deceased) that there is no such thing and went to accused Sheetal Bareth’s brother and made him understand. He has also stated that he had told the police in his statement that on 10.05.2011, father of deceased Krishna Bareth called him on phone and informed him that somebody had thrown inflammable substance on deceased and father of deceased had brought the deceased in Kalda Hospital, Raipur for treatment. This witness has categorically stated that his daughter Madhu (PW-9) had no love affairs whatsoever with accused Sheetal Bareth (A-1). 33. Close scrutiny of the evidence of all the prosecution witnesses as discussed above goes to show that as per Devdatt Sahu (PW-3) and Sita Ram Sah (PW-11), accused Sheetal Bareth (A-1) met with deceased Krishna Bareth before three months of the incident in the month of March, 2011, and after that on 09.05.2011, two unknown persons came to his betel shop of deceased Krishna Bareth and threw inflammable substance (acid) on him and due to burn injuries he died during the course of treatment on 13.06.2011. Thus, according to the prosecution, there is circumstance of meeting with the deceased by the accused persons prior to 03 months of the incident threatening the deceased not to marry with PW-9 and this was probable motive behind the crime. 34. The Hon’ble Apex Court in Yogesh (supra) held in para 25 and 26 as under :- “25. We now turn to the other circumstances on record to see whether circumstances on record by themselves are sufficient to bring home the guilt of the accused. 26. 34. The Hon’ble Apex Court in Yogesh (supra) held in para 25 and 26 as under :- “25. We now turn to the other circumstances on record to see whether circumstances on record by themselves are sufficient to bring home the guilt of the accused. 26. The law on the point of circumstantial evidence cases is very clear and as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra 2 , the well-settled principles are as under :- (SCC p.185, para 153) “153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.” 35. In Shivaji (supra) , the Hon’ble Apex Court held in para 30 and 31 as under :- “30. It will be relevant to refer to a recent judgment of this Court in Anwar Ali v. State of H.P. 15 : (SCC p. 190, para24) “24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar 16 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this court in Babu 6 absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under : (Babu case 6 , SCC pp. 200-01) ‘25. In State of U.P. v. Kishanpal 17 , this Court examined the importance of motive in cases of circumstantial evidence and observed : (SCC pp. 87-88, paras 38-39) “38. … The motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. 87-88, paras 38-39) “38. … The motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.” 26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weights in favour of the accused. (Vide Pannayar v. State of T.N. 18 ).” 31. In the present case, we are of the considered view that the prosecution has utterly failed to prove motive beyond doubt. As such, an important link to complete the chain of circumstances is totally absent in the present case.” 36. In Anwar Ali (supra) , the Hon’ble Supreme Court held in para 24, 25 and 26 as under :- “24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihars 56 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihars 56 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under: (Babu case 2 , SCC pp. 200-01) "25. In State of U.P. v. Kishanpal 57 , this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38-39) ‘38.... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its Importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or Inadequacy of motive cannot stand in the way of conviction.' 26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N. 58 ). 25. Considering the aforesaid facts and circumstances of the case, the findings recorded by the learned trial court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial court did not consider any material evidence on record. 25. Considering the aforesaid facts and circumstances of the case, the findings recorded by the learned trial court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial court did not consider any material evidence on record. The trial court was justified In recording the acquittal by observing that the prosecution has failed to complete the entire chain of events. Therefore, we are of the opinion that in the facts and circumstances of the case, the High Court is not justified in reversing the order of acquittal passed by the learned trial court. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. 26. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dated 20-9-2016 passed by the High Court of Himachal Pradesh in State v. Anwar Ali 1 is hereby quashed and set aside, and the judgment and order dated 15-6- 2012 passed by the learned Additional Sessions Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No. 5 of 2011 is hereby restored. The appellant-accused, namely, Anwar Ali son of Gama Ali and Sharif Mohammad son of Sampat Mohammad be set at liberty forthwith, if not required in any other case.” 37. In the light of above, in the present case also, it is clear that Devdatt Sahu (PW-3) and Sita Ram Sah (PW-11) have stated that 03 months prior to the incident, the accused persons met with the deceased and told him not to marry Madhu Bareth (PW-09) as accused Sheetal Bareth (A-1) was having love affair, except this there no other clinching or legally admissible evidence adduced by the prosecution against the accused persons. Madhu Bareth (PW-9) denied the factum of love affair with accused Sheetal Bareth and as per memorandum of both the accused persons, only motorcycle of accused Sheetal Bareth was seized. In this case, there is no eye-witness and from very beginning all witnesses of the incident have stated that two unknown persons threw acid on deceased Krishna Bareth. Madhu Bareth (PW-9) denied the factum of love affair with accused Sheetal Bareth and as per memorandum of both the accused persons, only motorcycle of accused Sheetal Bareth was seized. In this case, there is no eye-witness and from very beginning all witnesses of the incident have stated that two unknown persons threw acid on deceased Krishna Bareth. The police have not recorded dying declaration of the deceased during his life time and as per memorandum (Ex.P-7 and P-8) of accused persons, no any article or weapon was seized by the prosecution which directly associated with the crime. 38. Hon’ble Apex Court in the matter of Raja Khan vs. State of Chhattisgarh reported in (2025) 3 SCC 314 : 2025 SCC Online SC 260 held in para 27 as under :- “27. This Court, in Varun Chaudhary vs. State of Rajasthan, (2011) 12 SCC 545 and Mustkeem alias Sirajudeen vs. State of Rajasthan, (2011) 11 SCC 724 , has held that if the recovery memos have been prepared in the police station itself or signed by the panch witnesses in the police station, the same would lose their sanctity and cannot be relied upon by the Court to support the conviction.” 39. In the case in hand, upon a comprehensive re-appreciation of the entire oral and documentary evidence available on record, this Court finds that the prosecution has failed to establish the guilt of the accused-appellants beyond all reasonable doubt. The case of the prosecution is based purely on circumstantial evidence, and it is a settled principle of law that in such cases, the circumstances relied upon must form a complete and unbroken chain pointing only towards the guilt of the accused and excluding every possible hypothesis of innocence. The evidence adduced by the prosecution falls short of this well-settled standard. 40. At the outset, it is evident from the testimony of the eyewitnesses, namely Vijay Chouhan (PW-1) and Pappu @ Satish Yadav (PW-4), that the incident was committed by two unknown persons who had their faces covered at the time of occurrence. Both witnesses categorically admitted that they could neither identify the assailants nor state from where they had come. The zero number FIR (Ex.P-1) and numbered FIR (Ex.P-23) was also lodged against unknown persons, and this version remained consistent throughout the initial stages of investigation. Both witnesses categorically admitted that they could neither identify the assailants nor state from where they had come. The zero number FIR (Ex.P-1) and numbered FIR (Ex.P-23) was also lodged against unknown persons, and this version remained consistent throughout the initial stages of investigation. Thus, the identity of the assailants was never established at the place of occurrence, which strikes at the very root of the prosecution case. 41. Next, the Test Identification Parade conducted subsequently does not inspire confidence. The parade was held after a considerable delay, and there is no material on record to demonstrate that the accused were kept beyond the view of the witnesses prior to the identification. In a case where the assailants were admittedly masked, the evidentiary value of such identification becomes extremely weak. The law is well settled that identification for the first time in court or in a tainted test identification parade cannot be made the sole basis of conviction. Significantly, the deceased survived for more than a month after the incident and was under medical treatment during this entire period. Despite this, no dying declaration was recorded, nor has any witness deposed that the deceased ever named or indicated the accused- appellants as the perpetrators of the crime. The absence of a dying declaration in the present case assumes great importance and creates a serious dent in the prosecution story. 42. The prosecution has attempted to project motive by alleging that appellant No.1 was in a love affair with the fiancée (PW- 9) of the deceased and he threatened the deceased not to marry her (PW-9). However, this alleged motive stands completely demolished by the evidence of PW-9 Madhu Bareth, the fiancée of the deceased, who categorically denied any relationship or acquaintance with appellant No.1. That apart, her father, Ramkaran Bareth (PW-8), has also supported this denial. In view of such clear and categorical evidence, the prosecution has utterly failed to prove motive, which is a crucial link in a case resting solely on circumstantial evidence. 43. As regards the memorandum statements and recoveries, it is evident that except for seizure of a motorcycle, no incriminating article such as acid, container, clothes, or any other material connected with the crime was recovered. The memorandum statements of the accused do not lead to the discovery of any fact which can be said to be incriminating in nature. 43. As regards the memorandum statements and recoveries, it is evident that except for seizure of a motorcycle, no incriminating article such as acid, container, clothes, or any other material connected with the crime was recovered. The memorandum statements of the accused do not lead to the discovery of any fact which can be said to be incriminating in nature. In light of the law laid down by the Hon’ble Supreme Court, such recoveries lose their probative value and cannot be relied upon to sustain a conviction. 44. Apart from this, though the medical evidence sufficient to establish that the deceased died due to burn injuries caused by acid, does not in any manner connect the accused- appellants with the commission of the offence. The autopsy surgeon himself admitted limitations in determining the nature and origin of the burns solely on the basis of post- mortem examination. Medical evidence, therefore, only proves the factum of death and not the authorship of the crime. 45. Further, the alleged prior meeting between the accused and the deceased, which is stated to have taken place nearly three months before the incident, by itself does not constitute a circumstance sufficient to link the accused with the crime. There is no evidence of any continuous threat, conspiracy, or proximate conduct bridging the gap between the alleged meeting and the date of occurrence. 46. In view of the above analysis, this Court is of the considered opinion that the prosecution has relied on presumptions and conjectures rather than legally admissible and reliable evidence. The chain of circumstances is incomplete, motive is unproved, identity of the assailants is not established, and the benefit of doubt clearly accrues in favour of the accused- appellants. Accordingly, applying the principles laid down by the Hon’ble Supreme Court in Sharad (supra) , Yogesh (supra) , Shivaji (supra) , Anwar Ali (supra) , and Raja Khan (supra) , this Court holds that the prosecution has failed to prove its case beyond reasonable doubt. The accused-appellants are, therefore, entitled to acquittal by extending to them the benefit of doubt. 47. In the result, the appeal is allowed . The accused-appellants are, therefore, entitled to acquittal by extending to them the benefit of doubt. 47. In the result, the appeal is allowed . The impugned judgment of conviction and order of sentence dated 16.07.2014 passed by the 1 st Additional Sessions Judge, Raigarh (C.G.) in Sessions Trial No. 118/2011 is hereby set aside and the accused/appellants are acquitted of the charges levelled against them by extending them benefit of doubts. 48. The accused/appellants are on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellants are directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 49. The Lower Court records along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.