JUDGMENT 1. 1. The accused appellant was convicted for the offence under Section 302 IPC by the Additional Sessions Judge No. 2 Ajmer and sentenced to imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine, he has been sentenced to simple imprisonment for six months. Against this conviction and sentence he has preferred this appeal. 2. The facts leading to the case are that on 14.4.1986 at about 10.30 p.m. the accused appellant Madho @ Mahadev and co-accused Ramchandra, who has been acquitted by the Additional Sessions .fudge, were having liquor together with deceased Manu at Ravan Ki Baghichi. The report in the case was lodged by Asandas, who is the father of the deceased Manu @ Manohar. Asandas reported that he was informed by his brother-in-law, Kishan Chand, at his house that somebody had attacked his son Manu @ Manohar and upon this he went to the taal of Gagandas and saw that his son Manu was lying in the lap of Ramchandra and was bleeding profusely. Ramchandra's brother Nathu was also there and they called for an auto and took him to the Hospital. At that time his son Manu told him that Ramchandra caught hold of him and Mahadev had given knife blows on him. Manu had also said that the other two had some how managed to make him drink excess wine and then beaten him and he could not say for what enmity they had taken this revenge. In the hospital Manu was attended by the doctors and after sometime he was declared dead. Asandas also reported that Manu had Rs. 700/- with him but after his death when the compounder asked him to check the articles there were only Rs. 27 and one watch with him. 3. Upon this report a case was registered and on the morning of 15.4.1986 accused appellant was arrested. He gave information and on the basis of the same a knife was recovered from a dry naali in the corner of Ravan Ki Baghichi. 4. The police conducted usual investigation and prepared the site plan, and blood stained clothes of the deceased were recovered and blood stained soil was recovered from the site. The clothes of accused Ramchandra were also seized. As stated above two persons were tried for the offences of section 302 and 302/34 IPC. 4. The police conducted usual investigation and prepared the site plan, and blood stained clothes of the deceased were recovered and blood stained soil was recovered from the site. The clothes of accused Ramchandra were also seized. As stated above two persons were tried for the offences of section 302 and 302/34 IPC. But as the evidence against accused Ramchandra was of a doubtful nature he was given the benefit of doubt and acquitted. 5. Before coming to the contentions of the learned counsel for the appellant, the witnesses who can be said to have made out a case against the present appellant may be looked into. PW. 18 Vasudev is a person who works with Orient Transport Company. The company's godown is just across Ravan Ki Bagichi, where the incident took place. According to him, he was sitting in the veranda of the office. He saw the deceased, Manu @ Manohar, Ramchandra the appellant together going towards Kesarganj. After a while he heard the shouts of Manohar saying that Madho had given knife blow and he should be caught. This witness ran from his place and caught Madho and after that a crowd came and two constables came there and took Madho in their custody. At that time Manohar was bleeding from the abdomen and after a while he sat down and kept his head on the knees of Ramchandra then Asandas came there and took Manohar in an auto. On the next day he learnt that Manohar had expired. This witness was examined by the police about one month after the incident. 6. The next witness is PW. 12 Kishan Chand, who gave information to Asandas, the father of the deceased. At the relevant time of the incident he was returning to his house from the shop and he saw a crowd near the Oriental Company depot and then he saw Manohar and went to his house and informed his brother-in-law Asandas about it. He has categorically stated that he did not see the accused persons at that place. Even in the FIR, Asandas stated that Kishan Chand had told that someone had beaten Manu. The name of the assailant had not been given out. It-is PW. 1 Asandas who has come out with the story that he reached the place of the incident, he saw that Ramchandra was holding his son Manu, who was bleeding. Even in the FIR, Asandas stated that Kishan Chand had told that someone had beaten Manu. The name of the assailant had not been given out. It-is PW. 1 Asandas who has come out with the story that he reached the place of the incident, he saw that Ramchandra was holding his son Manu, who was bleeding. Manu was conscious. and on being asked he stated that Ramchandra had caught hold of him and Mahadev had given knife blows. He also stated that both had made him to take liquor and then beaten him. The other evidence about dying declaration is that of Naini Bai, who is wife of the deceased. According to her when she met her husband in the hospital, there he disclosed that Ram had caught hold of him and Mahadev and given a knife blow. 7. It may be mentioned here that even the witnesses of the site plan and other recovery memos have turned hostile and have stated in their statements that their signatures were obtained on plain papers. There are three witnesses, PW. 7 Gopal, PW. 8 Gulab Chand and PW. 9 Chhanamal, who have deposed that the two accused and the deceased were together having liquor in the Ravan Ki Baghichi and when they passed from that site they were also invited to participate in that for taking liquor but they refused. From their evidence the prosecution wants to show that the two accused and the deceased were seen together just before the incident. 8. The learned counsel for the appellant has contended that when the accused appellant was caught by the crowd as well as constables at the place of the incident itself then how is it that the arrest of the accused has been shown on the next day. It is also contended that there was no time within which he could have concealed the knife at any place because, according to the version of PW. 18 Vasudev that the appellant had been caught as soon as the deceased shouted and during this time he could not have concealed the knife at any place. The evidence of concealment of knife in order to implicate the appellant cannot be relied upon. According to the appellant, he is a vegetable vendor and he was arrested from his thella and he is not connected with any crime. The evidence of concealment of knife in order to implicate the appellant cannot be relied upon. According to the appellant, he is a vegetable vendor and he was arrested from his thella and he is not connected with any crime. Our attention has also been drawn to the admission of Asandas and Naini Bai, wherein they have stated that the deceased has a brother by name of Mahadev. His direct suggestion is that this Mahadev could have been the culprit, and the appellant has been falsely implicated. As for the recovery of the knife it is contended that there is no evidence to support the recovery of the same at the instance of the accused and there is no evidence about the seizure and sealing of the same. It has been contended that, according to the doctor, Manohar was unconscious when he was brought to the hospital and was not in a position to make oral dying declaration. If he was in a position to speak he would have told others also as to who was the person who had inflicted the blows upon him. 9. The learned Public Prosecutor has supported the decision of the learned Additional Sessions Judge and contended that there is evidence in the case about the accused and the deceased being seen together just prior to the incident and according to him the evidence of PW. 18 Vasudev and PW. 1 Asandas is reliable and sufficient for purposes of conviction of the appellant. 10. We have considered the contentions raised on behalf of both sides and perused the record. The very first witness PW. I Asandas has refused to identify the accused-appellant. He knew Ramchandra and not the other accused. His son given out to him that Ramchandra had caught hold of him and Mahadev had given him knife blow, but this Mahadev could not be identified as to who was this person to whom the deceased was referring. It is in order to take advantage of this situation that it has been introduced in cross examination that there is another Mahadev also, who could have been caused injuries to the deceased. Even if we accept from the testimony of the three witnesses, Gopal PW. 7, Gulab Chand PW. 8 and Chhanamal PW. It is in order to take advantage of this situation that it has been introduced in cross examination that there is another Mahadev also, who could have been caused injuries to the deceased. Even if we accept from the testimony of the three witnesses, Gopal PW. 7, Gulab Chand PW. 8 and Chhanamal PW. 9 that the two accused and the deceased were together at Ravan Ki Baghichi, just prior to the incident, then it has to be explained that soon after the incident the accused appellant was apprehended and taken by the police constables then why his arrest has been shown on the next day. PW. 18 Vasudev has clearly stated that a crowd collected there and two constables also came and took away the appellant, then he was arrested on the next day. The arrest memo is contrary to the evidence of the prosecution witness Vasudev. It is surprising that the incident took place in the presence of a number of persons and soon after the incident a number of persons collected there but no one from that area has come forward as a witness and even the investigating officer does not interrogate the persons of that area and the only persons he could interrogate and produce a witness was Vasudev who is related to the wife of the deceased. This is a case wherein there is a solitary witness of the incident, namely, Vasudev and solitary witness about the dying declaration, there is no corroboration of the testimony of both these witnesses. In order to base the conviction on testimony of a solitary witness, the witness ought to be of sterling worth. When the evidence of these witnesses have not been considered sufficient for conflicting one of the accused namely, Ramchandra, then on the basis of the same evidence, it would not be proper to hold the present appellant guilty. He also deserves to get a benefit of doubt as the case against him cannot be said to have been proved beyond reasonable doubt. 11. The appeal is accepted. The conviction and sentence is set aside. The appellant is in jail, ho shall be released forthwith, if not required in any other case.Appeal Allowed. *******