JUDGMENT 1. - The accused Bashir was convicted under section 302 IPC and sentenced to imprisonment for life with a fine of Rs. 100/- by the learned Additional Sessions Judge, Bhilwara by his judgment dated 16.9.1981, He has come in appeal and challenged his conviction. 2. Briefly stated the prosecution case is that deceased Chhitarlal Keer was resident of village Bigod. He used to drive a truck and in that connection he happened to come to village Jahajpur. It is alleged that 2 or 3 days before February 7, 1981 he went to village Jamoli. He had lifted some money of the accused and the thereby got annoyed. It is alleged that both of them i.e. accused and Chhitarlal went to the tea-stall of PW2 Ramdeo. There the accused demanded the payment of Rs. 50/-from the deceased. The deceased admitted that he had taken only Rs. 5/- which he immediately give to the accused. Thereafter, the persons intervened and both of them were pacified. They left the tea-stall together. 3. On 6.2. 1981, the Sarpanch, Gram Panchayat, Jamoli and some other persons of the village located a dead body lying in the way of village Bharani. The Sarpanch sent a written report Ex. P. 1 to the Police station, Pander. The police took an action under Section 174 Cr. P.C. The Station house officer, Bahadur Singh arrived at the scene and prepared the inquest report of the dead body. The dead body could not be identified on the spot by any person. However, the name Chhitarlal Keer was found scribed on one hand of the deceased. The Station House Officer also seized some clothes lying a few feet away from the dead body. Postmortem examination of the dead body was conducted on 7.2.1981 by Dr. B.M. Soni PW6, the then Medical Officer In-charge Government Dispensary Jahajpur. In the opinion of Dr. Soni, the cause of death was injury to spinal cord due to anterior dislocation of second survical vertibra leading to cerebral apoplexy and syncope. The postmortem report was prepared by the Doctor. Since the death of the unidentified body was not natural but homicidal, the police registered a case under Section 302 IPC and took up the investigation. The accused was arrested and in consequence of the information furnished by him one bushirt alleged to be belonging to the deceased Chhitarlal Keer was recovered. The postmortem report was prepared by the Doctor. Since the death of the unidentified body was not natural but homicidal, the police registered a case under Section 302 IPC and took up the investigation. The accused was arrested and in consequence of the information furnished by him one bushirt alleged to be belonging to the deceased Chhitarlal Keer was recovered. On the completion of the investigation the police submitted a challan against the accused in the court of Chief Judicial Magistrate, Bhilwara who in his turn committed the case for trial to the court of Sessions. The case come up for trial before the Additional Sessions Judge who framed a charge under Section 302 IPC against the accused. The accused pleaded not guilty and claimed to be tried. In support of its case the prosecution examined 17 witnesses and file some documents. In defence the accused adduced no evidence. On the completion of trial, the learned Additional Sessions Judge found the charge duly proved against the accused appellant. The appellant was consequently convicted and sentenced as mentioned at the very outset. Aggrieved against the aforesaid conviction and sentence the accused has taken this appeal. 4. We have heard the learned Amicus Curiae and the learned Public prosecutor. We have also gone through the case file carefully, 5. Before dealing with the contentions raised by the learned Amicus Curiae, it may be pointed out that the prosecution has relied upon the following sets of evidence for establishing the charge against the appellant. (1) the direct testimony of PW7 Nemichand and PW8 Devilal. (2) the testimony of PW2 Ramdeo on whose tea-stall the deceased and accused came to take tea. (3) the recovery of Bushirt belonging to the deceased at the instant of the appellant. 6. In assailing the conviction, it was contended by the learned Amicus Curiae that the statements of PW7 Nemichand and PW8 Devilal do not show that the man who was beaten by the accused was Chhitarlal Keer. According to these two witnesses they saw the appellant beating a boy whom they could not identify. It was argued that there is no evidence on record to show that the man who was beaten by the appellant was the deceased Chhitarlal. According to these two witnesses they saw the appellant beating a boy whom they could not identify. It was argued that there is no evidence on record to show that the man who was beaten by the appellant was the deceased Chhitarlal. It was on the other hand contended by the learned Public Prosecutor that looking to the other circumstances of the case it can be easily inferred that the boy who was being beaten by the accused was none else other than the deceased Chhitarlal Keer. 7. We have carefully gone through the statements of both these two witnesses and find that the contention raised by the learned Amicus Curiae is not without force. Both these two witnesses PW7 Namichand and PW8 Devilal have stated that while they were returning together from some feast they found the accused beating a boy in the way whom they could not identify. Needless to say that it was incumbent upon the prosecution to prove that the boy who was beaten by the accused was none else other than the deceased Chhitarlal Keer. Both these witnesses do not state so and clearly admitted that they could not identify that boy who was being beaten by the accused. 8. There is one more aspect of the case. The photographs of the dead body were taken by the police when they prepared the inquest report of the deceased. It was very easy for the prosecution to establish the identity of the boy who was alleged to have been beaten by the accused. During the trial the photographs should have been shown to these two witnesses Nemichand and Devilal and they should have been examined on the point that the boy who was beaten by the accused was that who was shown in the photographs. Unfortunately the prosecution has not done so. For want of evidence it cannot therefore be said that the boy whom these witnesses saw being beaten by the accused was that very boy whose dead body was found outside the village. Thus, the testimony of these two witnesses does not help prosecution. 9. The testimony of PW2 Ramdeo is not also much helpful to the prosecution. He simply stated that the accused and a boy came to his tea-stall. They wanted to beat that boy and he and other persons intervened and saved the boy from being beaten. Thus, the testimony of these two witnesses does not help prosecution. 9. The testimony of PW2 Ramdeo is not also much helpful to the prosecution. He simply stated that the accused and a boy came to his tea-stall. They wanted to beat that boy and he and other persons intervened and saved the boy from being beaten. The accused told them that the boy had taken Rs. 50/- from him. That boy admitted that he has taken only Rs. 5/-which he immediately returned. He thereafter got the matter pacified. It is interesting to note that this witness also did not disclose that boy who came with the accused on the teastall was very boy who was found killed outside the village or whose photographs were taken by the prosecution. No attempt was made by the prosecution to get the identity of that boy established from these witnesses. 10. It was next contended by the learned Amicus Curiae that the recovery of the Bushirt at the instance or in consequence of the information furnished by the accused is also not helpful to the prosecution. It could not be established that the victim was wearing that very bushirt when he was being beaten. The two eye-witnesses PW7 Nemichand and PW8 Devilal do not state that they have seen this bushirt on the body of the deceased or the same was found near the place where he was beaten. The contention is not without force It is true that the bushirt was got recovered at the instance and in consequence of the information furnished by the appellant, but the question still then remains as to whether the declared was wearing the bushirt at the time he was assaulted or belaboured. There is no evidence on this point. 11. We have taken the above three sets of evidence into consideration and we are of the considered opinion that they are not sufficient to establish the charge against the appellant. We are, therefore, unable to maintain the conviction of the appellant. 12. In the result, the appeal of Bashir is allowed and his conviction and sentence under Section 302 I.P.C. are set aside and he is acquitted thereof. He is in jail and shall be set at liberty if not required in any other case.Appeal allowed. *******