JUDGMENT 1. - Girdhari accused has filed this appeal against his conviction under Section 302 1.P.C. by the Sessions Judge, Jhunjhunu, for committing the murder of Shyopal. 2. Shyopal is said to be son of P.W. 7 Surji and brother of P.W. 8 Banarshi and was living in village Badou-ki-dhani. On 11-11-1978, Mangu Ram father of deceased Shyopal had gone to his friend Mangla to effect the marriage of Mangla's daughter. Shyopal, Smt. Surji and Banarshi were left behind. Accused Girdhari and Gadsi met Mangu Ram there and told Manguram that Shyopal was trying to tease their brother's wife. Manguram said that his son is not of that character, but even then he would make his son behave properly. On this accused Girdhari and his brother said that they themselves would see him. In the night, Surji and Banarshi had gone for sleeping in the field near Mangu Ram's house. Shyopal was sleeping on the cot near his mother and sister. At about 9.30 in the night, Girdhari and Gadsi came there with Lathis and told Shyopal that his father is calling. Shyopal refused because it was late in the night. On this Girdhari and Gadsi started beating Shyopal after taking him on the ground from the cot. Burji and Banarshi started crying and both of them tried to rescue Shyopal by falling on the body of Shyopal, but Girdnari and Gadsi gave lathi blows to Surji and Banarshi also. Mangi Lal also came there, who saw that Shyopal was lying there. Banarshi and Surji were standing there. Gadsi gave 3 blows to Surji. Nahru, Cheta and Prahlad came there on hearing the cries of Banarshi and Surji. They saw accused Girdhari and Gadsi beating Shyopal. Gadsi and Girdhari both then ran away. Prahlad followed and chased them, but could not catch them. Shyopal became unconscious. Shyopal was then taken by Mangu in a Bus at Khetari Police Station and a report of the incident was lodged. 3. Shambhu Singh S.H.O. who recorded the F.I.R. saw Shyopal in the Bus when he was unconscious and then mentioned the injuries in Ex. 1 and sent the injured to Government Hospital, Khetari. Dr. Om Prakash examined Shyopal and found the following injuries: 1. Lacerated wound 21/4" x 1/4" x 1/4" on scalp over left temporal and parietal region oblique. 2. Haematoma 11/4 x 1" on scalp over left parietal eminence. 3. 1 and sent the injured to Government Hospital, Khetari. Dr. Om Prakash examined Shyopal and found the following injuries: 1. Lacerated wound 21/4" x 1/4" x 1/4" on scalp over left temporal and parietal region oblique. 2. Haematoma 11/4 x 1" on scalp over left parietal eminence. 3. Lacerated wound 11/4" x ⅛" x 1/1" on scalp over Rt. parietal eminence-Oblique. 4. Lacerated wound 2" x 1/4" x 1/4" on scalp occipital region-Horizontal. 5. Lacerated wound 11/4" x 1/4" x 1/4" on scalp occipital region-Horizontal 1/4" below and parallel to injury No. 4. 6. Contusion 3" x 2" on Back Rt. side below scapula oblique. 7. Contusion 5" x 1" on back starting from upper part of Rt. scapula going down words obliquely below the lower border of left scapula." At the time of examination, Shyopal was unconscious. He died in the morning at 8.30 A.M. The post-mortem was conducted and the investigation followed. Both Girdhari and Gadsi were challaned, but since Gadsi was absconding only Girdhari was tried. After recording of the evidence, the trial court examined accused Girdhari who, pleaded that the allegations against him are false and ultimately after hearing the arguments convicted accused Girdhari under Section 302 WC. 4. The appeal was taken up for hearing, but no one appeared for the accused although the accused is represented by two counsels. We, therefore heard Mrs. Kamla Jain, learned Public Prosecutor and Mr. R. S. Rathore appearing for the complainant. We have also gone through the entire record of the case. 5. The important feature of this case is that the trial court has disbelieved all the witnesses except Mst. Surji, the mother of the deceased. We would not like to repeat the entire evidence to hold that the death of the deceased is homicide. We are convinced that by the medical evidence, it is proved that the death of Shyopal is homicidal. 6. The sole question, which required consideration by this Court is whether the conviction of accused Girdhari based on the sole testimony of PW 7 Mst. Surji can be sustained and whether Mst. Surji is a witness of sterling worth. 7. Learned Public Prosecutor or the learned counsel for the complainant themselves have not argued before us that there is any evidence except the evidence of P.W. 7 Mst. Surji on which reliance can be placed for the purpose of conviction of accused Girdhari. Surji can be sustained and whether Mst. Surji is a witness of sterling worth. 7. Learned Public Prosecutor or the learned counsel for the complainant themselves have not argued before us that there is any evidence except the evidence of P.W. 7 Mst. Surji on which reliance can be placed for the purpose of conviction of accused Girdhari. Even otherwise, we have gone through the other evidence and found that the only evidence on which reliance can be placed is of Mst. Surji. According to Mst. Surji, accused Girdhari and Gadsi came in the night with lathis and they got up Shyopal from the cot and told him that his father is calling him. Shyopal got up but said that it was late in the night, he would not go. Thereafter, Gadsi and Girdhari started beating nim after taking him on the ground from the cot. According to this witness Girdhari gave 2-3 blows and Gadsi gave many blows. She and her daughter tried to rescue by grappling with the accused, on account of which, she received injuries. Thereafter all the accused ran away. In the examination-in-chief she stated that when 'Marpeet' was going on her husband Mangu came there. Prahlad, Cheta and Naru also came there and Prahlad followed and chased the accused but he came back. In the cross-examination, she admitted that all these persons except her daughter was not there when the actual beating took place. According to her, her husband enquired from her who were the assailants and so also the other witnesses, Naru, Cheta and Prahlad made enquiries and they came after her husband. 8. It is obvious that she has given two versions. In the examination-in-chief she wanted to show that all these persons, namely, her husband Mangu, Prahlad, Naru and Cheta were the eye witnesses who, came when the beating was going on, but in the cross-examination she admitted that all these persons came later-on and she disclosed the names of the assailants. It is true that this itself is not sufficient to discard Surji, whose presence on the spot, was natural. However, we find that according to her, her daughter was the eye witness of the incident. When we examined the statement of her daughter PW 8 Banarshi, we find that she has no respect for truth. She has taken a number of somersault in her statements. However, we find that according to her, her daughter was the eye witness of the incident. When we examined the statement of her daughter PW 8 Banarshi, we find that she has no respect for truth. She has taken a number of somersault in her statements. According to her, in the examination-in chief, she stated that her father came when the beating was going on and Naru, Prahlad, and Chet Ram also came at that time. In cross examination, she took the different stand. First she said that she does not know how much distance accused Girdhari and Gadsi ran away when her father came. Then she gave different version in the further cross examination. At one place she said that she became unconscious and Naru came after she become unconscious. It is surprising how she could know that such persons had come, in such, unconscious stage. This shows that she has got no respect for truth. According to her, the Doctor had seen their injuries but we find that there is no certificate of medical and the Doctor has not testified that Mst. Banarshi got injuries in this incident. 9. We are, therefore, confronted with the situation where the only two witnesses of this incident; mother of the deceased and the sister of the deceased have also faultered on material particulars. It is true that they are natural witnesses and they might have been present at the time when the incident happened. It is also true that in this incident, none else but Shyopal who is son of PW 7 Surji and brother of PW 8 Banarshi lost his life. However, we find that none of the two witnesses can be said to be the witnesses of sterling worth. 10. Since all other witnesses obviously came at the spot thereafter and the trial court's finding that he should not be believed and are untrustworthy, has not been challenged before us. We have left with no other alternative but to upraise the evidence of these two witnesses Learned counsel for the complainant submitted that apart from the other evidence accused can be convicted on the testimony of PW 7 Surji only. 11. We find it too difficult a proposition to accept. Surji herself has got no respect for truth. We have left with no other alternative but to upraise the evidence of these two witnesses Learned counsel for the complainant submitted that apart from the other evidence accused can be convicted on the testimony of PW 7 Surji only. 11. We find it too difficult a proposition to accept. Surji herself has got no respect for truth. She stated that her daughter was present and her daughter saw the incident and her daughter also tried to rescue the deceased. We are convinced that the present one is a case where we have got no other alternative but to give the benefit of doubt to the accused because of the infirmities in the statements of these two witnesses. It is true that cold blooded murder is going unpunished. But since the principle of criminal jurisprudence is well established, we cannot deviate, from the same for the put poses of convicting the accused. The responsibility and the liability for the acquittal goes so rarely on the shoulders of the prosecution and none else, and the mother and sister of the deceased, who in zeal have either tried to exaggerate or create evidence on suspicion and tried to involve the accused. Be that as it may the basic fact remains that in spite of all efforts of the counsel for the complainant and the learned Public Prosecutor, they have not been able to stear clear the doubts, which are glaring in this case. 12. The resultant position cannot be anything else but to acquit the accused. Consequently, the appeal is accepted. Accused appellant Girdhari is acquitted of the offence under Section 302 or 302/34 and Section 323 IPC. He shall be released forth-with, if not required in any other case.Appeal accepted. *******