- (1.) M. A. Khan, J. Heard parties learned Counsel and I have gone through the judgment delivered by the learned Court below.
(2.) ADMITTEDLY, there is no enemity between accused-appellant and the deceased. The case of appellant is in fact based on circumstantial evidence alone which is not sufficient enough to base conviction safely against appellant. Only evidence against the appellant is that he was last seen going with the deceased. However, there is nothing on record to show that appellant had any enemity with the deceased or it was a case of robbery. The deceased was found lying but none could see the assailants. And also there is no circumstance to point out the guilt of the appellant. The evidence of last seen is a circumstantial evidence but there is no other evidence which may point out clearly towards the guilt of the appellant and in the case such connecting evidence is definitely lacking. Having considered all circumstances of the case and having gone through the record, I find that the appellant is not guilty under Section 364 IPC.
(3.) THE appeal is allowed, judgment and order dated 28-7-1998 passed by the learned Session Judge are hereby set aside. THE appellant Daya Shankar is found not guilty under Section 364 IPC. He is on bail. He need not surrender and sureties are discharged and bail bonds are cancelled. Appeal allowed. .;