Judgment G. K. SHARMA, J. ( 1 ) THIS appeal has been preferred against the judgment dated 15. 11. 1986 passed by the Sessions Judge, Bundi whereby, convicted the appellant under section 302, I. P. C. and sentenced him to life imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo 6 months simple imprisonment. It was also directed that out of the amount of fine deposited by the accused, a sum of Rs 1,500/- be paid to the wife of deceased i. e. , Mst. Bashiran (P. W. 5 ). ( 2 ) MST. Bashiran lodged a report on 31. 10. 1985 at 6. 30 am. alleging that she resides in Anita Bazar with her husband Hafiz alias Abdul Hafiz. In the morning at 6 a. m. when her husband was urinating at the Narda the accused Fazlu Rehman came abusing him and he was having iron rod in his hand, Fazlu Rehman told him that some time you open the door in the night and some time you do not open the door and while saying like this he inflicted a blow with iron rod on the head of her husband. At that time she and her daughter Nasim were standing in the verandah. When the blow was inflicted they cried. Blood came out from the head of her husband. Fazlu Rehman dragged her husband and took him on the main road and sat on his chest and in order to kill her husband he started giving blows by iron rod. She ran to the house of Ghasita and his son Mustkim who rescued her husband. When Ghasita and Mustkim arrived at the spot Fazlu Rehman was sitting on the chest of her husband and was inflicting blows by iron rod. She then went to the Police-Chowki of Meera Gate and Police Constables accompanied her and came to the spot. On return they saw that Abdul Rehman was lying on the ground in a pool of blood and Fazlu Rehman had run away. She was sent to Police Station to lodge the report. It is further alleged that for the last 3/4 years, dispute between her husband and Fazlu Rehman (Jeth) was going on Fazlu Rehman used to threaten them to kill. On this report a case under section 307, I. P. C. was registered. She was sent to Police Station to lodge the report. It is further alleged that for the last 3/4 years, dispute between her husband and Fazlu Rehman (Jeth) was going on Fazlu Rehman used to threaten them to kill. On this report a case under section 307, I. P. C. was registered. When Hafiz succumbed to the injuries the case was converted into section 302, I. P. C. After completing the usual investigation the Police submitted challan against the appellant. The learned Sessions Judge framed charge against the appellant under section 302, I. P. C. The accused pleaded not guilty and claimed trial. ( 3 ) THE prosecution has examined 14 witnesses to establish its case. The accused has denied on the allegations levelled against him. The contention was that on account of enmity Bashiran and her daughter Nasim had given falss statements. He has also contended that he had his share in that house. They wanted that he should not come to the house to live in and so they used to shut the door from inside and in spite of his call to open the door but they did not open it and as a result he used to sleep in the mosque. In the previous night on account of not keeping well he was sleeping in the room. In the morning when he get up he saw Abdul Hafiz and Bashiran fighting with each other. He went to separate them. Bashiran wanted to inflict a blow of iron rod to him but it hit the head of Abdul Hafiz. He has denied to have given any beating to Abdul Hafiz. ( 4 ) WE have considered the arguments advanced and also gone through the entire record of this case. We have minutely gone through the statements of the prosecution witnesses specially the alleged eyewitnesses. The report in this case was lodged at the Police Chowki at 6. 10 a. m. which was entered in the Rojnamcha Ex. P. 1. The regular F. I. R. was lodged at 6. 30 a. m. at City Kotwali. According to Bashiran, the incident took place at 6 a. m. in the morning. It shows that the incident had taken place in the very early part of the day. In the month of October at about 6 a. m. there would be ample darkness. In the report Ex. 30 a. m. at City Kotwali. According to Bashiran, the incident took place at 6 a. m. in the morning. It shows that the incident had taken place in the very early part of the day. In the month of October at about 6 a. m. there would be ample darkness. In the report Ex. P 9 Bashiran has stated that she and her daughter Nasim were standing in the verandah when this incident took place. It means that both were standing in the veranda and in their presence the accused came and inflicted blow by iron rod. Nasim (P. W. 6) has stated that in the morning at 5 a. m. Fazlu Rehman came to the house and gave blow by iron rod on the head of her father. Her father cried and then her mother came in the chowk. Her father told her mother to call Ghasita. It means that where Bashiran and Nasim were standing is a doubtful fact. In the morning at 5 a. m. it cannot be believed that Bashiran and Nasim would get up and stand in the verandah just to watch the incident. Bashiran does not say that when her husband cried she came out and this also creates doubt whether Bashiran and Nasim had seen this incident. There is also difference in the state ments about dragging by accused. In the report Bashiran has stated that accused Fazlu Rehman dragged her husband and took him up to main road. In the court statement Bashiran has not stated that accused dragged her husband up to main road. She has stated that when the blow was given by the accused then her husband Abdul Hafiz and Fazlu Rehman grappled with each other and the accused was inflicting blows by iron rod. She was asked by her husband to call Ghasita, and she went away. So she has not stated that the accused dragged her husband upto main road. Nasim (P. W. 6) has stated that when her father cried her mother came in the chowk. Her father told her mother to call Ghasita and at that time accused and her father were grappling with each other. Her mother called Ghasita and at that time her father was lying on the ground below the stairs and the accused was sitting on the chest of her father and was throttling him. Her father told her mother to call Ghasita and at that time accused and her father were grappling with each other. Her mother called Ghasita and at that time her father was lying on the ground below the stairs and the accused was sitting on the chest of her father and was throttling him. Ghasita and his son Mustkim came and removed the accused from the body of her father. Such statement has not been given by Bashiran. So we find that the statement of Bashiran (P. W. 5) and Nasim (P. W. 6) are not same. ( 5 ) ACCORDING to the prosecution case and according to Bashiran and Nasim only Ghasita and his son Mustkim were the eye-witnesses to this incident. Whether these two eye-witnesses support and corroborate the statements of Bashiran and Nasim? In this light we have perused the statements of both these witnesses. Ghasita (P. W. 8) has stated that Bashiran came to his house and told that her husband and her Jeth were fighting with each other. He came there and saw both Hafiz and Fazlu Rehman fighting with each other. Hafiz fell down below the stairs who received some injuries on the head. At this stage the learned Public Prosecutor requested the Court to grant him permission to put certain questions to this witness as he is giving statement contrary to Police statement. The Public Prosecutor was permitted by the Court to cross-examine the witness. In the cross-examination he has stated that he separated both Hafiz and Fazlu Rehman but, he has denied that Fazlu Rehman had thrown away deceased Hafiz on the ground and was inflicting blows by iron rod. He was contradicted with the Police statement Ex. P. 13 and he has denied what has been written in it. So the only eye-witness examined by the prosecution has not supported the case and has not corroborated the statement of Bashiran and Nasim. The another eye-witness, according to prosecution, was Mustkim who is the son of Ghasita (P. W. 8 ). The prosecution has not examined this witness and he was produced in defence by the accused. He has stated that Hafiz and Fazlu were real brothers. Bashiran came to their house and told that her Jeth and husband were fighting with each other and so you rescue them. The prosecution has not examined this witness and he was produced in defence by the accused. He has stated that Hafiz and Fazlu were real brothers. Bashiran came to their house and told that her Jeth and husband were fighting with each other and so you rescue them. He and his father came to their house and saw Hafiz and Faztu grappling with each other. Hafiz fell down near the stairs and he had some head injuries. Then Bashiran went inside the house and brought iron rod She wanted to hit it on the head of Fazlu but unfortunately the rod hit the head of Hafiz. The blood came out from his head. He has said that he had not seen Fazlu Rehman beating Hafiz. In this quarrel Hafiz fell down 2-3 times on the ground, then they were separated. In the cross-examination he has stated that Hafiz and Fazlu Rehman grappled with each other and Hafiz fell down on the ground. Bashiran went inside the house, brought iron rod and wanted to inflict blow with this iron rod on the head of Fazlu but it struck the head of Hafiz. Thus, we find that both these eye-witnesses have not supported the prosecution case but they have supported the contention of the accused They have admitted that some time Bashiran and her husband did not open the gate which resulted that Fazlu Rehman used to sleep in the mosque. So there was dispute between both the brothers with regard to this landed property. ( 6 ) IF we look at the statement of the doctor and the injury report we find that the statements of Bdshiran and her daughter Nasim have not been corroborated. If their statements are taken at credit than too it is not clear, how these numbers of injuries were inflicted to Hafiz. There were number of fractures on the head and according to the doctors statement these fractures could be caused by number of blows with iron rod It is not in the evidence that the accused inflicted number of blows on head with iron rod because Bashiran had already gone to cell Ghasita so she could not say about the number of blows inflicted by accused with iron rod. Mst. Nasim was there but her statement is not to this effect. Mst. Nasim was there but her statement is not to this effect. What we find is that the medical report is not corroborated by the statements of these witnesses. How Hafiz received all these injuries is to be established. This fact the learned Session Judge has failed to appreciate. He has also failed to appreciate the statements Ghasita (P. W. 8) and Mustkim (D. W. 2) Dr B. L. Chauhisa (D. W. 1) was examined by the accused who has proved that he had three injuries on his body. How the accused got these injuries has not bee n explained by the prosecution. It was the duty of the prosecution to prove the injuries of the accused. The eye-witnesses Bashiran and Mst. Nasim have not stated that deceased Hafiz inflicted blows to accuse Fazlu Rehman. So how he got these injuries. It means Bashiran P. W. 5 and Nasim P. W. 6 were not eye-witnesses to this incident. How dispute took place has not been established. According to Ghasita (P. W. 8) and Mustkim (D. W. 2), the prosecution case falls on the ground. The entire case rests on the statement of two eye-witnesses Ghasita (P. W. 8) and Mustkim (D. W. 2) and both these eye-witnesses have not supported the case of the prosecution. The other eyewitnesses Bashiran (P. W. 5) and Nasim (P. W. 6) being wife and daughter of the deceased and on enimical term with the accused are unreliable and their statements are not sufficient to establish the case of the prosecution. The learned trial Court has not appreciated their testimony in a right perspective manner. We do not agree with the finding arrived at by the trial Court. The prosecution has failed to establish its case. ( 7 ) IN view of our above discussion we find the prosecution has failed to establish its case beyond reasonable doubt. The learned Sessions Judge has not correctly appreciated the testimony of the eye-witnesses and has erred in finding the case established against the accused. ( 8 ) AS a result, the appeal is accepted. The accused is acquitted of the offence under section 302, I. P. C. The accused in jail. He be released forthwith, if not needed in any other case.