JUDGMENT 1. - This appeal against the judgment of the Learned Additional Sessions Judge, Bundi, dated February 9, 1972, has arisen in the following circumstances 2. A report was lodged in the police station Jawaharsagar Dam on 10-1-71 at 10 a. m. by Mania PW 3 that the dead-body of Jagannath Gujar was lying in the hotel of Mathura in Budhpura Khan. It was rumoured that he was strangulated by Maru Bhats. The police after investigation challaned three persons, namely, Moti, Peeru and Mangu under section 302 IPC. They eventually came to be tried by the said Learned Additional Sessions Judge who by her impugned judgment acquitted Moti but convicted Mangya under section 304 part II IPC and sentenced him to undergo rigorous imprisonment for four years. The further convicted Peeru under section 304 part II read with section 34 IPC and sentenced him to undergo rigorous imprisonment for two years. Hence this appeal. 3. I have heard arguments and seen the record. 4. The prosecution had produced three witnesses to prove how Jagannath Gujar was done to death. It is alleged that Jagannath was sitting at the hotel of Mathura. The hotel keeper was absent but his son Munna PW 7 was on the shop. Moti accused came and purchased a kacbori but refused to pay for it. Thereupon, verbal exchanges took place between Moti and Jagannath. Peeru and Mangya who were watching all this while sitting on a bench in front of the stall, intervened and strangulated Jagannath. Three witnesses who are said to have witnessed the actual occurrence are Mst. Dhooli PW 2 daughter of Jagannath, Munna PW 7 and Bhanwar Singh PW 10. The learned trial Judge discarded the evidence of Bhanwar Singh PW 10. But in spite of several contradictions, she relied upon the statement of Mst. Dhooli, corroborated in some respects by the statement of Munna PW 7 who had in fact turned hostile to the prosecution. Thus as a matter of fact, the only evidence that the prosecution was able to put forth in respect of the manner in which Jagannath was killed is that of his daughter Mst. Dhooli PW 2. 5. Mst. Dhooli is a child witness 12-13 years old, and it appears that the learned trial judge put up some questions to test her intelligence but unfortunately all those questions were not allowed to go on record. Dhooli PW 2. 5. Mst. Dhooli is a child witness 12-13 years old, and it appears that the learned trial judge put up some questions to test her intelligence but unfortunately all those questions were not allowed to go on record. The learned trial judge observed in her judgment that a few questions were put to the witness. She was intelligent enough to answer simple questions but when she was asked questions regarding truth and falsehood, then she failed to follow the complicated nature of the question. She was also unable to understand questions properly when she was confronted with her previous depositions and was asked whether those statements were correct or not. Such was the ability of this witness and yet the learned trial judge found it possible to hold that the witness gave answers with confidence after recollecting the incident herself. The learned trial judge was, however, constrained to observe that Mst. Dhooli changed her version at times but then it was because of the fact that the questions were put to her in order to confuse her. Apart from the fact that this observation falls heavily against Mst. Dhooli, it also shows that the learned trial Judge had absolutely no control over the proceedings going on before her. Indeed, at one stage of cross-examination of Mst. Dhooli, she had to adjourn the hearing because due to heated arguments of the counsel, the witness began to cry loudly out of fright. 6. Now, let us turn to the statement of Mst. Dhooli to see what worth it is. She began to say that Peeru caught hold of Jagannath, while Mangya pressed his neck and fell him on the ground. She did not know ali the three accused persons beforehand and came to know their names when the accused talked among themselves. In cross-examination, she said that the names of the accused were given to her by the Investigating Officer. In her examination-in-chief she had stated that Moti gave a shoe beating to the deceased but in cross-exmination she resiled from that statement. At one stage she was put a question whether it was Peeru who pressed the neck of Jagannath and she answered in the positive. When it was pointed out to her as to what she was saying, she changed her statement to say that it was Mangya who pressed neck of her father. At one stage she was put a question whether it was Peeru who pressed the neck of Jagannath and she answered in the positive. When it was pointed out to her as to what she was saying, she changed her statement to say that it was Mangya who pressed neck of her father. Towards the end of her cross-examination, she came out with a story that Peeru had carried Munna away from the quarrel and it was then that Mangya strangulated her father. The tenor of her examination before the trial judge is that it was neither Moti nor Peeru but Mangya who was responsible for the death of her father. In respect of this story, the learned counsel pointed out that Mst. Dhooli is not reliable witness because in her statement Ex. D1 portion C to D made before the committing magistrate she said that she did not see Mange Lal over there. Then she was confronted with this statement, she admitted that what she stated before the committing magistrate was a correct statement. In view of this material and significant contradiction in her statements, it is difficult certainly to rely upon her testimony and record conviction even against-Mangya. He is also entitled to the benefit of doubt. 7. I therefore, accept this appeal and hold that the prosecution has not been able to bring the guilt home to the appellants beyond any manner of reasonable doubt. The appellants are acquitted of the offences, they are convicted of and their sentences are set aside. They are on bail and need not surrender. *******