JUDGMENT 1. Dev Lal, appellant has been convicted by the Sessions Judge, Jhalawar, by his judgment dated October 31, 1988 for offence u/s. 302 IPC to imprisonment for life and he has filed this jail appeal before this Court. Shri I.R. Saini, Advocate was appointed as Amicus Curiae to represent the appellant. 2. The prosecution case is that Kalu Lal s/o Chatraji (PW. 7) lodged a first information report on Dec. 15, 1977 at 10.00 a.m. at Khanpur Police Station stating therein that at about 9.30 a. m. on that day, he was washing at the well of Jagannath Gujar. Kishan Lal Gujar was washing his shirt at the well while Jagannath was moving the `Charas'. At that time, Narayani deceased was returning from a nearby peepal-tree towards the village. The appellant came from the side of the village with an axe in his hand. When he came near Narayani, he pushed Narayani aside and inflicted an axe blow on her neck, as a result of which, Narayani fell down and expired. The appellant ran back. On this report, the S.H.O. Police Station, Khanpur registered crime No. 149/77 for offence u/s. 302 IPC. The Station House Officer, Police Station, Khanpur went on the spot. He prepared the site plan Ex. P-7 with a memorandum Ex. P. 8. He collected the blood stained sand and the sample sand from the place of incident and seized them. After autopsy of the deceased and seizure of her clothes, the dead body of Narayani was handed over to her brother Gopal Lal. 3. It may be mentioned that the appellant could not be arrested and, therefore, a charge-sheet was filed in the Court of Additional Munsif-cum-Judicial Magistrate, Aklera on 12th June, 1978 showing the appellant as absconding. The Judicial Magistrate issued warrant of arrest against the appellant but the same could not be executed. He, therefore, proceeded to record evidence of prosecution witnesses u/s. 299 of the Code of Criminal Procedure. The Judicial Magistrate recorded statements of several witnesses. Ultimately, the appellant was apprehended and arrested on 13.11.87. The case had been transferred to the court of Munsif-cun-Judicial Magistrate, Khanpur, who by his order dated 10th Dec., committed the appellant for trial to the court of Sessions. The Judicial Magistrate recorded statements of several witnesses. Ultimately, the appellant was apprehended and arrested on 13.11.87. The case had been transferred to the court of Munsif-cun-Judicial Magistrate, Khanpur, who by his order dated 10th Dec., committed the appellant for trial to the court of Sessions. The Sessions Judge, after holding the trial, found the appellant guilty for the offence u/s. 302 IPC and convicted him for the said offence and sentenced him to imprisonment for life. 4. We have heard the learned Amicus Curiae and the learned Public Prosecutor and have gone through the record of the case. 5. It may be mentioned that most of the material witnesses have not supported the prosecution case and during the trial, they were declared as hostile by the Public Prosecutor and were cross examined. Kalu Lal (PW. 7) is the lodger of the first information report. Although he has stated that he was washing at the well and Jagannath Gujar and Kishan Lal were also present there and further that on hearing the cry of Prem, they rushed to the spot and found that Narayani was lying injured having injuries on her neck. He however, does not state that it was the appellant who had inflicted injury on the neck of Narayani. He was confronted with his police statement portion `A' to `B' Ex. P. 2 but he disowned having given that statement. He also stated that he had not seen axe in the hands of the appellant. Kishan Lal (PW 10) was another eye witness mentioned in the first information report. He deposed that on hearing the cry from Prem (PW 13), he rushed to the place of incident and was Narayani lying dead with injuries on her neck. He, however, stated that he did not see the appellant there. He saw the appellant running at a great distance from him. He also disowned the portion implicating the appellant in his police statement Ex. P-14. 6. According to the evidence adduced during the course of trial, the prosecution witnesses stated that they had rushed to the spot on hearing the cry of Prem (PW. 13). Prem, in her statement recorded in the court, deposed that she had not seen anyone causing injury to Narayani. She also denied having seen the appellant inflicting axe blow on the neck of Narayani. It would thus appear that neither Prem (PW. 13). Prem, in her statement recorded in the court, deposed that she had not seen anyone causing injury to Narayani. She also denied having seen the appellant inflicting axe blow on the neck of Narayani. It would thus appear that neither Prem (PW. 13) nor Kalu Lal (PW. 7) and nor Kishan Lal (PW. 10), who, according to the prosecution were eye witnesses to the incident, have supported the prosecution case. So far as husband of deceased Narayani, viz. Kalu Lal s/o Mittu ji (PW. 9) is concerned, admittedly, he was not in his village on the day of the incident. He has stated that on that day, he had gone to village Menalodi. At village Menalodi one Babu Teli came on a motor-cycle and informed him that his wife was seriously ill and was in the hospital. He came to his village with Babu Teli and when he was at a distance of 15 to 20 steps from him house, Babu Teli informed him that the appellant had murdered Narayani. The husband of the deceased being not an eye witness of the incident, his evidence does not connect the appellant with the crime. 7. It may be mentioned that while the appellant was absconding, statement of some witnesses were recorded by the Judicial Magistrate u/s. 299 Cr.P.C. As regards Kishan Lal (PW. 10), who was also examined by the Judicial Magistrate u/s. 299 Cr.P.C. as PW 3, it may be stated that Kishan Lal was confronted with his previous statement and he disowned having given that statement. So far as Jagannath, (one more eye witness) was concerned he was reported to be dead and, therefore, his statement recorded by the Judicial Magistrate Ex. P-6) was taken on record. In his previous statement Ex. P-26, Jagannath did not support the prosecution case that the appellant had murdered Narayani deceased. Thus, none of the eye witnesses named in the first information report support the prosecution case. It may be mentioned that one more witness Udai Lal was examined by the Judicial Magistrate u/s. 299 Cr.P.C. and his statement is Ex. P-27. Before the trial started, Udai Lal was reported to be dead. Thus, none of the eye witnesses named in the first information report support the prosecution case. It may be mentioned that one more witness Udai Lal was examined by the Judicial Magistrate u/s. 299 Cr.P.C. and his statement is Ex. P-27. Before the trial started, Udai Lal was reported to be dead. It is true that after the death of Udai Lal, his previous statement is admissible in evidence u/s. 33 of the Evidence Act read with S. 299 Cr.P.C. But, it may be mentioned that Udai Lal's name was nowhere mentioned by Kalu Lal in the first information report Ex. P-5 lodged by him at Police Station, Khanpur. Kalu Lal in the first information report, had only shown the presence of Jagnnath and Kishan Lal apart from himself. These three witnesses have not supported the prosecution case. Udai Lal's presence at the time of the incident is consequently highly doubtful. 8. Thus, on the basis of the evidence recorded during the trial as well as on the basis of the statement of Jagannath recorded u/s. 299 Cr.P.C. by the Judicial Magistrate, the appellant could not be held guilty for the offence u/s. 302 IPC. 9. Consequently, we allow this appeal, set-aside the conviction of the appellant for the offence u/s. 302 IPC and do hereby acquit him from the charge of the said offence. Appellant Dev Lal is in jail he shall be released forthwith unless wanted in some other case. *******