JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Additional Sessions Judge, No. I, Jodhpur dated November 18, 1976 by which the appellant Rawataram was convicted for the offence under section 307 Indian Penal Code and sentenced to four years rigorous imprisonment and a fine of Rs. 5000/-; in default of payment of fine to undergo two months rigorous imprisonment. 2. Succinctly narrated the facts of the case giving rise to this appeal are as under:- On March 6, 1973 at 5.00 p.m. Karnaram lodged a report at police station Lohawat, that on that day at about 10.30 a.m. he was working at the famine work along with Hema Ram and Padam Singh Constable also reached there. After a little while Rawata Ram went there and informed about Panna Ram being locked in the house of Kheta Ram. At this Hema Ram (PW 2), Roopa Ram (PW 9) Padam Singh (PW 10), Chena Ram (PW 11) and accused Rawata Ram went to the house of Kheta and unlocked the door. Panna Ram was found lying injured near the door and Smt. Pempa (PW 8), widow of Kheta was sitting near the hearth. Panna Ram was smeared with blood. He was naked with only one shirt on his person. Karna Ram (PW 5) at the instance of Hema Ram (PW 2) brought a bullock cart in which the injured was taken to the police station. Prabhu Ram accompanied Karna Ram. The information was lodged by Kama Ram. The police registered a case under sections 307 and 342 Indian Penal Code. Padam Singh (PW 12), the Station House Officer started for the investigation. Panna Ram injured was sent to Mahatma Gandhi Hospital, Jodhpur. On March 7, 1973 Dr. P. Dayal (PW 14) examined Panna Ram and prepared the injury report Ex. P. 15. For the injury on the parietal region of scalp, x-ray was advised. Fracture in the right parietal region was detected. A number of simple injuries caused by blunt object were also found on his body. At the time of the arrest of the appellant his shirt, suspected to have blood stained, was taken in possession. While in custody he furnished information for getting recovered a stone. In pursuance of that information, the stone article 1 was recovered from beneath an oak tree near the famine work. 3. At the time of the arrest of the appellant his shirt, suspected to have blood stained, was taken in possession. While in custody he furnished information for getting recovered a stone. In pursuance of that information, the stone article 1 was recovered from beneath an oak tree near the famine work. 3. After the completion of necessary investigation chargesheet under section 307 and 342 Indian Penal Code was filed in the Court of Munsif and Judicial Magistrate, First Class, Phalodi. The learned Magistrate finding a prima facie case, exclusively triable by the Court of Sessions, committed the accused to the Court of Sessions, Jodhpur to stand his trial. The case on transfer reached the Court of Addl. Sessions Judge, No. 1, Jodhpur. 4. The learned Addl. Sessions Judge, chargesheeted the appellant for the offences under section 307, 323 and 342 Indian Penal Code. The prosecution examined fourteen witnesses in all. To substantiate its case and placed reliance on nineteen documents and exhibited seven articles. Accused in his statement under section 313 of the Criminal Procedure Code totally denied the allegations levelled against him and stated that Hema Ram (PW 3) wanted Smt. Pempa (PW 8) to be the wife of his son and as he (appellant) was objecting to it, he had been falsely implicated. He also stated that Panna Ram had an evil eye on Smt. Pempa (PW 8). The learned Addl. Sessions Judge not believing the prosecution story about the injured being confined in the room and his simple injuries being sustained at the hands of the appellant, acquitted the appellant for the charges under sections 323 and 342 Indian Penal Code. The learned Judge however believed the prosecution case about the appellant causing grievous injury on the head of Panna Ram with a stone and held him guilty for the offence under section 307 Indian Penal Code and passed the judgment under appeal. 5. I heard Mr. K.L. Purohit, learned counsel for the appellant and Mr. M.C. Bhati, learned Public Prosecutor for the State and carefully examined the record of the case. 6. Mr. 5. I heard Mr. K.L. Purohit, learned counsel for the appellant and Mr. M.C. Bhati, learned Public Prosecutor for the State and carefully examined the record of the case. 6. Mr. Purohit has assailed the findings of the learned trial Judge on the ground that despite there being two types of versions by the prosecution witnesses and the one supporting the defence being more plausible, the learned Judge relied the solitary testimony of the injured in convicting the appellant for the offence under section 307 Indian Penal Code which cannot be said to be just. 7. The contention of the learned Public Prosecutor on the other hand is that the statement of Panna Ram injured gets support from the medical evidence. That in view of the statement of Hema Ram (PW 2) that the appellant told him and others about Panna Ram lying injured in the house of Kheta the statement of Smt. Pempa (PW 8) a hostile witness has been rightly discarded by the learned trial Judge. 8. At the very outset, it may be observed that the prosecution case rests on the solitary testimony of the injured Panna Ram, Smt. Pempa (PW 8), the only eye witness to the occurrence has been declared hostile by the prosecution. In such circumstances, the evidence of Panna Ram (PW 1) will have to be scrutinised carefully in order to ascertain whether he is a witness of sterling worth. 9. Panna Ram (PW 1) has attributed motive to the appellant to commit the crime. According to him in the night of shiv-ratri of the year of the occurrence i e. 1973, he had gone to shiv temple. In the mid night when he come out of the temple to make water, he saw the appellant combining with one `Jat' lady. That on the witness reprimanding the appellant for his act, he picked up a quarrel. According to the witness, on the day of the occurrence, when he was returning from the famine work, the appellant and Smt. Pempa (PW 8) were found standing near the house of Girdhari and the appellant asked the witness to accompany him to have tea at the house of Smt. Pempa and compromise the matter relating to the quarrel which had taken place between them. The witness stated that he accompanied them and when he had entered the room; the appellant threw a stone from outside the house which hit the witness causing injuries examined to substantiate this contention about the quarrel at shiv-mandir in the night of `shiv-ratri' is Poona Ram (PW 6). He has stated about Panna Ram telling Rawata Ram that he should not stay with a woman in the temple. The witness did not stated about any other quarrel. Poona Ram (PW 6) admitted that he had not seen any women there. It is pertinent to note that Poona Ram has also stated some thing about the date of occurrence. According to him he and Panna Ram were returning from the famine work. His house falls in the way. He asked Panna ram to take tea. Panna ram declined the offer because he was in a hurry as it was his turn for irrigating the field. Poona Ram insisted upon Panna Ram to take tea as it was ready. Panna ram took the tea and went away. If that was so and Pannaram had already taken the tea at the house of Poona Ram and was in such a hurry then, as the learned counsel for the appellant has argued it does not appeal that he would have stayed in the way at the house of Smt. Pempa (PW 8) for taking tea at the instance of the appellant. Another fact throwing doubt on this part of the statement of the witness is that initially he had stated about the incident of his injuries taking place on `shiv-ratri' and then has changed his version and stated that it was the quarrel at temple that had taken place on `shiv-ratri' and the present incident was two days thereafter. The witness Smt. Teeja (PW 3) wife of Girdhari examined to substantiate the story about the appellant taking Panna Ram to the house of Smt. Pempa (PW 8) has been declared hostile by the prosecution. She had of course stated about Panna Ram passing the way out side her house on the relevant date but denied the presence of the appellant at the time or there being any talk between the two. 10. She had of course stated about Panna Ram passing the way out side her house on the relevant date but denied the presence of the appellant at the time or there being any talk between the two. 10. This is also noteworthy that Panna Ram at the trial has stated about the appellant and Smt. Pempi (PW 8) both being there out side the house of Girdhari, husband of Smt. Teeja (PW 3) and the appellant making him to go to the house of Kheta and take tea and Smt. Pempa (PW 8) also accompanying them to her house. The attention of the witness was drawn to his police statement Ex.D-1 where he has stated about Smt. Pempa (PW 8) being already there near the hearth in her room when the witness and the appellant reached there. According to the learned counsel for the appellant, this type of evidence not supported by any witness and inconsistent from the previous statement is not sufficient to convince the Court that it was the appellant at whose instance Panna Ram (PW 1) had gone to the house of Smt. Pempa. 11. Dr. P. Dayal (PW 14) has noted the Increated wound on the right parietal region of the scalp That injury on x-ray examination was found to be grievous. He had also noted there abrasion and swelling over the left temporal reigon of face. All those injuries according to the Doctor were caused by some blunt object. Panna Ram (PW 1) has stated about only one stone throw by the appellant on his head and is silent about the remaining injuries on his body. 12. It has been vehemently argued by Mr. Purohit, that looking to the injuries noted by the Doctor on the person of Panna Ram, the defence version coming forth from the statement of Smt. Pempa (PW 8) gives a probable story and should be believed. Smt. Pempa (PW 8) has admitted Panna Ram being injured in her house and lying there. But her contention is, that it was not the appellant who had caused any injury to Panna Ram. She was deposed at the trial that Panna Ram having an evil on her entered her room and wanted to ravish her but she pushed him aside and threatened him with a stick. But her contention is, that it was not the appellant who had caused any injury to Panna Ram. She was deposed at the trial that Panna Ram having an evil on her entered her room and wanted to ravish her but she pushed him aside and threatened him with a stick. That on her pushing, his head struck against the stone over the door causing head injury to him. The witness stated that Panna Ram became unconscious and the witness went outside in the shed adjacent to that room and remained sitting there throughout the night, as Ugma her brother-in-law (Jeth) was not available in his house. There is force in the argument of the learned counsel for the appellant that the simple injuries sustained by Panna Ram might have been caused by the stick used by Smt. Pempa (PW 8) to ward off the danger of being ravished by Panna Ram. The appellant was chargesheeted for the offence under section 323 Indian Penal Code for those simple injuries of Panna Ram but there being no evidence about his causing those injuries he had been acquitted for that charge. 13. The learned Public Prosecutor has urged that Smt. Pempa being the sister-in-law of the appellant might have tried to save him by resiling from her police statement and therefore, her statement has rightly been discarded by the trial Court. The accused as well as this witness had admitted the relationship but as the statement of Hema Ram (PW 2) is that Kheta husband of Smt. Pempa (PW 8) and the appellant were not cousins rather they were related in ten or fifteen degrees. 14. The story given by Smt. Pempa (PW8) that it was on account of the injured striking against the stone over the door when he pushed by the witness does not appear to be improbable. A specific question was asked to the Doctor P. Dayal (PW 14) and he had admitted that if a person is pushed like that or if he enters or exits out the door and strikes against the stone over the door, the type of injury Panna Ram and has sustained was possible. 15. A specific question was asked to the Doctor P. Dayal (PW 14) and he had admitted that if a person is pushed like that or if he enters or exits out the door and strikes against the stone over the door, the type of injury Panna Ram and has sustained was possible. 15. Prosecution has sought support for the testimony of Panna Ram from the circumstantial evidence of the recovery of the stone in pursuance of the information furnished by the appellant and his going to the famine work and informing people about some body lying injured in the house of Kheta and then opening the lock of the house with the key in his pocket. 16. It is relevant to note that the stone is said to have been recovered from near the famine work and it does not appeal as to why a person would take a risk by taking it to such a long distance. Even if the argument of the learned Public Prosecutor is considered that the appellant might have thrown the stone at a place where many other stones might be lying in order to hide the weapon of offence, still, in view of the fact that no blood was detected on the stone, it is in no way connected with the commission of the crime. 17. So far as the evidence of the person reaching the house of Pempa, wife of Kheta, and finding the injured Panna Ram inside the room is concerned, it is noteworthy that Kama Ram (PW 4), Roopa Ram (PW 9) and Chena Ram (PW 11) have not supported the prosecution case about the appellant unlocking the door with the key with him. Padam Singh Constable (PW 12) who also had accompanied those persons had stated that he does not recollect whether the door was locked or not. Hema Ram (PW 2) is the only witness who had substantiate the prosecution story. According to Panna Ram, Hema Ram is his maternal uncle and naturally therefore, interested in him. The learned trial Judge has also not placed reliance on the statement of Hema Ram and for that reason acquitted the appellant for the offence under section 342 Indian Penal Code. Thus there is no circumstance connecting the appellant with the commission of the crime. 18. The learned trial Judge has also not placed reliance on the statement of Hema Ram and for that reason acquitted the appellant for the offence under section 342 Indian Penal Code. Thus there is no circumstance connecting the appellant with the commission of the crime. 18. With the above discussion, it is evident that the medical evidence is not on the line of the prosecution story narrated by Panna Ram, rather it lends support to the version given by Smt. Pempa. Smt. Pempa (PW 8) has of course been declared hostile by the prosecution, but on careful scrutiny of her evidence, I am of the opinion that she is a witness of credence and her statement stands corroborated from the fact that the injured was found naked in her room; the Doctor has stated the possibility of his sustaining the head injury on his head on striking against some stone on the door and there being simple injuries on his person. In these circumstances, I am declined to hold that prosecution could not succeed in establishing the guilt against the appellant beyond shadow of reasonable doubt. 19. Consequently, the appeal is allowed and the conviction and sentence passed against the appellant are set aside and he is acquitted of charge under section 307 Indian Penal Code. He is on bail, he need not surrender to it. His bail bonds stand discharged.Appeal Allowed. *******