JUDGMENT 1. - This appeal is directed against the judgment, dated, November 7, 1981, by the Sessions Judge, Alwar, convicting the appellant under section 304 Part II I.P.C, and sentencing him to rigorous imprisonment for four years and a fine of Rs. 1000/-, or in default, simple imprisonment for four months. 2. The case of the prosecution which resulted in the conviction and sentence of the appellant as aforementioned may be shortly stated here. Sukhram deceased, one of the relatives of complainant Nanagram (P.W. 1), had worked for sometime as an employee of Nanag Ram's father at the latters lime-kiln about a year before his death. During the period of his employment and residence at Nanag Ram's father's house, there was a quarrel between Sukhram deceased and Suganchand accused over drawing water from a common tap. It is alleged that the accused had at the time, threatened the deceased that he would settle score with him in due course. The threat compelled Sukhram deceased to quit his job and leave the complainant's village. 3. The prosecution story farther goes that Sukhram deceased returned to the complainants fathers house on June 22, 1981, and was staying there as a guest for the night. Another guest, Chand Khan, was also present there, Babulal, an employee of the complainants father also happened to be present in the house. It is alleged that the complainant, the deceased. Chand Khan. Chimanlal (father of the complainant) and Babulal were all sleeping in the complainants house that night. They woke up on hearing Sukhrams cries at about 1.30 A.M. Sukhram was shouting for help saying that he was being attacked by Shugan Chand. It is further alleged that they saw Shugan Chand carrying a phantiya in his hands and chasing Sukh Ram and hitting him on the head with that crude but deadly weapon. Sukh Ram died on the spot. The accused ran away after striking the fatal blow. 4. Nanagram (PW. 1) reported the occurrence to the police the same night at 4:30 a.m. SI Bhup Singh (PW. 10) took up investigation and prepared the site plan (Ex. P/3) of the scene of occurrence. He recorded the statements of Nanag Ram, Chand Khan, Chimanlal, and Badulal in the course of the investigation. Dr. Mahesh Chand Gupta conducted the postmortem examination and opined that Sukh Ram met with homicidal death. 5. 10) took up investigation and prepared the site plan (Ex. P/3) of the scene of occurrence. He recorded the statements of Nanag Ram, Chand Khan, Chimanlal, and Badulal in the course of the investigation. Dr. Mahesh Chand Gupta conducted the postmortem examination and opined that Sukh Ram met with homicidal death. 5. On completion of the investigation the police submitted the Charge-sheet against Sugan Chand for his commitment preparatory to trial for the offence of murder of Sukhram punishable under section 302 I.P.C. 6. During the trial, the prosecution examined, among others, Nanagram, Chand Khan, Chimanlal. Babulal, Dr. Mahesh Chand Gupta and Bhup Singh as its witnesses. Except for Babulal, the other witnesses supported the prosecution case as mentioned above. 7. In his statement under section 313 Cr.P.C., the accused denied the allegations made against him and pleaded that he had been falsely implicated in this case on account of previous enmity with Nanagram. He explained that Nanagram had made a criminal assault on his sister sometime before the occurrence and that he had been punished for that crime by the village panchayat. According to the accused, Nanagram falsely implicated him in this case on account of that incident. 8. Sawta (DW. 1),S sister of Suganchand accused, supported the defence version. Deep Chand (DW. 2) corroborated the testimony of Sawta and deposed that Nanagram had been fined Rs. 500/- by the village Panchayat for making a criminal assault on Sawta. 9. Prabhatilal (DW. 3) a sainik in the Railway Protection Force deposed that on the night of occurrence he was on duty at the railway station Kherili which is quite close to the house of complainant Nanagram. He further deposed that on hearing noise from the house of Nanagram he went there and met Chimanlal father of Nanagram. He also saw the dead body of Sukhram lying there. On his inquiry Chimanlal told him that he had been killed without disclosing the name of the killer. 10. Relying on the evidence of PWs. Nanagram and Chimanlal, and partly on the evidence of PW Chand Khan, the learned Sessions Judge came to the conclusion that the accused had hit Sukhram deceased on the head with a Phantiya in the house of PW 'Chimanlal and that Sukhram died on the spot as a result of that injury. 10. Relying on the evidence of PWs. Nanagram and Chimanlal, and partly on the evidence of PW Chand Khan, the learned Sessions Judge came to the conclusion that the accused had hit Sukhram deceased on the head with a Phantiya in the house of PW 'Chimanlal and that Sukhram died on the spot as a result of that injury. He therefore, found the accused guilty of culpable homicide not amounting to murder punishable under section 304 Part II I.P.C. 11. Aggrieved by the judgment and order of conviction and sentence passed against him by the trial court, the accused has appealed. 12. Mr. Bhargava, learned counsel for the appellant has read out the entire evidence in the court in an attempt to show that Nanagram, Chand Khan and Chimanlal whose evidence forms the basis of the order of conviction and sentence against the appellant could not have possibly seen the occurrence. I am inclined to agree that these witnesses could not see as to who killed the deceased. Nanagram stated that he heard in his cot the cries of Sukhram deceased, who was shouting for help stating that Suganchand was attacking him. He further stated that on getting up from his cot he saw Sugan Chand accused chasing Sukhram and the Fatter going underneath a cot in an attempt to save himself from the assault. Nanag Ram asked the accused to stop the assault, but the accused paid no heed to him and asserted, that he would kill the deceased Nanag Ram further deposed that the accused there after struck a Phantiya blow on the head of the deceased who became unconscious and died on the spot. In trying to explain the manner in which the crime was committed, Nanagram stated that the accused pulled the deceased out from below the cot and then struck the Phantiya blow on his head. 13. If Chimanlal, father of Nanag Ram is to be believed, the accused had already dealt the Phantiya blow to the deceased and made good his escape from the scene of the crime before Nanag Ram woke up and arrived there. According to Chimanlal, he had to call Nanag Ram from the Chhappar nearby, where he was sleeping, after the accused had run away. According to Chimanlal, he had to call Nanag Ram from the Chhappar nearby, where he was sleeping, after the accused had run away. He made it further clear that Nanag Ram could not have seen the actual assault for, according to him, Nanag Ram enquired of him as to what had happened and that it was he who told Nanag Ram that Sugan Chand had hit the deceased and run away. 14. If we read the evidence of Babulal PW, an employee of Chimanlal, it becomes doubtful if Chimanlal had himself seen the actual assault. Babulal says that on hearing the commotion in the house, he woke up and, in turn awakened Chimanlal. He further says that Chimanlal switched on the light and that it was then that they could see that Sukhram was lying dead near his cot. It is true that Babulal was declared hostile at the instance of the Public Prosecutor who was allowed to cross-examine him. That dose not however mean that his evidence should be thrown overboard merely on that ground. Sizing up his evidence as a whole, I am of opinion that the version given by him is much nearer the truth then the story given by other witnesses. For example, his evidence that Chimanlal switched on the electric light sounds much more plausible then the evidence of other witnesses that an electric bulb of 100 wattage was left burning throughout the night and was therefore already burning in the compound of the house at the time of the occurrence. Had any such bulb been burning therefore Chimanlal switched on the light, the Investigating Officer was bound to mention this fact in the site plan Ex. P/3 in which even many relatively minor details were mentioned by him. The story regarding the bulb burning in the compound throughout that summer night is conspicuous by the omission of its mention in the said site plan. 15. Turning now to the evidence of Chand Khan, learned trial Judge himself described him as an unreliable witness. It will be seen that he is a blind man who could not possibly see what was going on in the house of the complainant that night. He would have us believe that he heard the deceased crying in pain that Sugan Chand had hit him and run away. It will be seen that he is a blind man who could not possibly see what was going on in the house of the complainant that night. He would have us believe that he heard the deceased crying in pain that Sugan Chand had hit him and run away. Chimanlal's version on the other hand is that the deceased merely shouted "bachao, bachao" without naming his assailant. I agree with the trial court that it would not be safe to rely on the evidence of Chand Khan. 16. It will thus be seen that the prosecution has not been able to prove beyond reasonable doubt that Sugan Chand accused was the assailant who dealt the fatal blow to the deceased. The possibility of Nanag Ram, who is definitely on inimical terms with the accused on account of his punishment by the village Panchayat for the criminal assault made by him on the sister of the accused falsely implicating the accused in this crime to take revenge against him cannot be ruled out, The accused deserves the benefit of doubt. The impugned order of conviction and sentence against the accused must therefore be set aside. 17. In conclusion, I allow this appeal, set aside the order of conviction and sentence passed against the accused and instead acquit him. He is in jail. He shall be released forthwith, if not required to be detained in any other case.Appeal allowed. *******