JUDGMENT 1. - The appellant was tried for the offence under Section 302 IPC and co-accused Ram Lal was tried for the offences under Section 302 read with Section 34 IPC by the Sessions Judge, Bundi. Ramlal was acquitted while the appellant has been convicted for the offence under Section 304 Part IPC and sentenced to 7 years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine to undergo two months rigorous imprisonment. Against the conviction made on 17-3-1990 Deva has preferred this appeal. 2. Briefly stated the facts of the case are that on 29th Sept. 1987 at about evening time an incident occurred, report of which was lodged on the next day at 10.15 a.m at Police Station Dablana. The report was lodged by Ramchandra, brother of deceased Moti on the information given by Babulal son of Ramchandra. The SHO recorded the statement of Babulal in order to get a clear picture of the incident. He gave out that Deva and Ramlal came on cycle and stopped near the field of maize. They came inside the maize field and started plucking maize heads, when he (Babulal) asked them not to do so On call Moti came there and said something. The appellant and Ramlal packed the maize heads on their cycle and at that time Deva appellant gave kulhadi blow near the ear of Moti Moti fell down. Thereafter Ramlal picked up a stone and inflicted an injury on the head of Moti. The appellant Deva gave another blow by the bick side of Kulhadi on Moti. They came towards Babulal and he ran away. Then Hazari Mali came there and villagers were informed. Moti was taken to the Hospital where he died after 4-5 dajs. 3. When Moti was admitted to the Hospital following injuries were found on his body : 1. Contusion, abrasion 11/4" x 1/4" bluish on the lateral end of Rt. eye brow. 2. Contusion, abrasion 6" x 5" bluish brown scab on the left cheek (Left mandible) region and left side of neck upper part. 3. Contusion 3" x 21/2" bluish on the posterior lateral surface of left elbow and upper ⅓ of left forearm. 4. Contusion 3" x 21/2" bluish on the left occipital region of scalp. There was fracture of mandible on left side and olecranon process of ulna left side. 3. Contusion 3" x 21/2" bluish on the posterior lateral surface of left elbow and upper ⅓ of left forearm. 4. Contusion 3" x 21/2" bluish on the left occipital region of scalp. There was fracture of mandible on left side and olecranon process of ulna left side. The death was caused due to head injury (extra dural haemorhage.). 4. Moti did not regain consciousness till his death, therefore he could not give a statement as to how the incident occurred. The evidence on the basis of which the learned Sessions Judge has found the appellant guilty can be said to be three types. One is statement of PW. 1 Babulal, who claims to be present at the time of incident, second is the recovery of kulhadi on the basis of information given by the appellant and the third is examination of the blood found on the safe of the deceased, kulhadi recovered from the appellant and the blood stained soil recovered from the scene of the occurrence, all of which were found to be of 'O' group blood. 5. The learned counsel for the appellant has attacked the findings of the learned Sessions Judge and contended that PW. 1 Babulal is not an eye witness, while the other witnesses in the case have deposed on the basis of hear-say evidence. It is also contended that the evidence about the recovery of kulhadi at the instance of appellant cannot be accepted as there was no witness present at the time this kulhadi is aid to have been recovered by the Investigating Officer from the house of the appellant. As per the blood found on kulhadi it was stated that none of the injuries of the deceased were caused by sharp edged weapon and there is nothing to show that the blood was found on the back side of the kulhadi which has been matched with the blood on the safe and the blood stained soil. 6. The most important witness in the case is PW. 1 Babulal and his statement may be scrutinised. According to him he was making a scare crow in the field when the appellant and Ramlal came there and Ramlal started plucking maize head. Babulal told him not to do so then called Moti. 6. The most important witness in the case is PW. 1 Babulal and his statement may be scrutinised. According to him he was making a scare crow in the field when the appellant and Ramlal came there and Ramlal started plucking maize head. Babulal told him not to do so then called Moti. When Moti came there Ramlal threw a stone at him and Deva gave a blow near the ear by the back side of the kulhadi. Moti fell down Devi gave one more blow to him, while Ramlal threw another stone at Babulal. Both the accused went away from there Thereafter Ramlal and Hazari came there and other relations were called and Moti was taken to the Hospital. In cross examination he has admitted that he ran away when Deva and Ramlal went after him and that Moti was beaten when he (Babulal) had run away. He has also admitted that he came near only when the accused went away from there. According to him the maize crop in the field was quite high and one could not see as to who was on the o her side of the c op. There was no enmity between the parties and the quarrel arose because the accused were plucking maize. However, Babulal did not get himself medically examined for his hand injuries. It is contended by the learned counsel for the appellant that the aim of the accused was to pluck maize then they would have taken a hasia or some other weapon, which would have been helpful to them in getting the maize and not a kulhadi which cannot be used for this purpose. The injuries of Mod are also not by a sharp weapon and the presence of a kulhadi with the appellant becomes doubtful. The recovery memo of kulhadi says that there was blood on on the edge of the kulhadi and on the wooden balsa. The blood on the edge of the kulhadi would not have been there on account of any injuries caused to Moti. When the eye witness Babulal is not able to prove a consistent story as to how the incident occurred and there is no other evidence to corroborate his version, the case against the appellant cannot be said to be proved beyond reasonable doubt. When the eye witness Babulal is not able to prove a consistent story as to how the incident occurred and there is no other evidence to corroborate his version, the case against the appellant cannot be said to be proved beyond reasonable doubt. The learned Sessions Judge has not believed Babulal so far as the injury caused by Ramlal is concerned. The solitary witness has to be of sterling worth before a person can be convicted on the basis of his testimony. Babulal has contradicted his own statement Ex.P/1. When this evidence is coupled with the evidence of recovery of kulhadi for which there is no independent witness, then it cannot be said that the case against the appellant is proved beyond reasonable doubt. The presence of O group blood will also not help the prosecution case. It has not been established on which part of the kulhadi the blood was found. When there is no injury by sharp edge of the kulhadi then it was all the more necessary to establish that the blood was not on the back side of kulhadi from where the blow had been inflicted on Moti. 7. In my view the material on the basis of which the learned Sessions Judge has convicted the appellant cannot be said to be sufficient material on which the accused can be found to be guilty. The case against the appellant cannot be said to be proved beyond reasonable doubt and he is entitled to be acquitted. 8. The appeal is accepted. The conviction and sentence of the appellant is set aside. He is acquitted of the offence under Section 304 Part-I IPC. He is in Jail, he shall be released forthwith if not required in any other case. *******