JUDGMENT 1. 1. This appeal is directed against the judgment dated July 16, 1984, passed by the Sessions Judge, Udaipur, by which the learned Sessions Judge convicted the accused-appellant Dhaniya under Section 302 I.P.C. and accused-appellant Laliya under Section 302/34 I.P.C. and sentenced each of them to imprisonment for life and to pay a fine of Rs. 50/- each and in default of payment of fine further to undergo one month's rigorous imprisonment. 2. The incident, which led to the prosecution of the present appellants, took place at about 1.00 p.m. on March 28,1983, in village Dhariyawar when Roopa a villager of village Dhariyawar - was murdered. The report of this incident was lodged at Police Station, Dhariyawar on March 28, 1983 at about 1.15 p.m. by Shambhu Nath (PW 4). The investigation of the case was conducted first by the Deputy Superintendent of Police Mr. Surendrapal Singh (PW 13) and subsequently by PW 16 Devipuri - the Station House Officer, Police Station, Dhariyawar. After the submission of the challan by the police, the accused were tried by the learned Sessions Judge, Udaipur. The prosecution, in support of its case, examined 16 witnesses and the accused, in their defence, examined five witnesses. The learned Sessions Judge, after trial, convicted and sentenced the accused-appellants, as stated above. 3. Heard learned Counsel for the appellants and the learned Public Prosecutor for the State. 4. The nature of the evidence, produced by the prosecution, consists of four eye witnesses, viz., PW 1 Veni Ram, PW 2 Mangla Ram S/o Kaniya, PW4 Shambhunath and PW 12 Suraj Mal. PW 1 Vani Ram and PW 2 Suraj Mal did not support the prosecution case before the trial Court and, therefore, they were declared hostile. PW2 Mangla Ram S/o Kaniya was disbelieved by the learned trial Court on account of the infirmities pointed-out by the learned trial Court and, therefore, there remains the evidence of only PW4 Shambhu Nath - the alleged eye witness in the case. To support the prosecution case further, the prosecution examined PW3 Dr. Kailash Chand Jindal, who conducted the post-mortem on the dead-body of deceased Roopa. PW 5 Aamir Khan is the Police Constable, who sent the eight sealed packets of the case for chemical examination to the State Forensic Science Laboratory, Jaipur, Through one Kalu Singh - Constable. To support the prosecution case further, the prosecution examined PW3 Dr. Kailash Chand Jindal, who conducted the post-mortem on the dead-body of deceased Roopa. PW 5 Aamir Khan is the Police Constable, who sent the eight sealed packets of the case for chemical examination to the State Forensic Science Laboratory, Jaipur, Through one Kalu Singh - Constable. PW 6 is Kalu Singh Constable, who had taken the sealed articles for Chemical Examination to the State Forensic Science Laboratory, Jaipur. PW 13 Surendrapal Singh is the then Deputy Superintendent of Police, who initiated the investigation and later on handed-over the same to Devipuri the Station House Officer - completed the investigation and submitted the challan. PW 14 Paliya and PW 15 Pura are the two Motbir witnesses of the recoveries. PW 7 is Gautam, who took the photographs of the dead body of the deceased Roopa. PW 8 Lukhman Khan, PW 9 Fateh Lal, PW 10 Karan Mal and PW 11 Mahesh are the neigh-bourers, but they have not supported the case of the prosecution and have shown their ignorance as to who murdered deceased Roopa. Apart from this ocular testimony, the prosecution has, also, placed reliance over certain recoveries. The learned lower Court did not place any reliance on the recoveries made and convicted the accused-appellants only on the basis of the statement of PW 4 Shambhu Nath. The learned lower Court, also, disbelieved the testimony of the defence witnesses. 5. There are only two eye witnesses of the occurrence, viz., PW 2 Mangla S/o Kaniya and PW 4 Shambhu Nath. In the First Information Report, one eye witness Kalu Lal was, also, shown as eye witnesses, but he has not been produced by the prosecution and was given up, who has been produced by the defence as DW 1. Another feature of the case is that the statement of one Mangla S/o Kaliya was recorded by the prosecution under Section 161 Cr. P.C., but during the trial, Mangla S/o Kaniya was produced as PW 2 and he was confronted with the statement of Mangla S/o Kaliya, recorded under Section 161 Cr.P.C. This witness PW 2 Mangle S/o Kaniya is none else than the brother-in-law of the deceased Roopa, who has stated that he was examined by the police on the next day. This witness was not believed by the learned trial Court on various grounds. This witness was not believed by the learned trial Court on various grounds. The conduct of this witness seems to be highly unnatural. He witnessed the occurrence, but went-away from the scene of the occurrence and did not take trouble to take his real brother-in-law to the hospital. He even did not try to rescue the deceased Roopa. Even after when Roopa was taken to the hospital, this witness did not visit the hospital. The over-all reading of the statement of this witness clearly shows that he had not seen the occurrence and is a cooked-up witness and has been produced by the prosecution taking the benefit of his name which was akin to the other eye witness Mangla S/o Kaliya. 6. The only evidence, which remains to support the prosecution case is that of PW 4 Shambhu Nath. We have gone-through the statement of this witness thoroughly. This witness, also, does not inspire confidence. He is a Literate Constable posted at Police Station, Dhariyawar and his presence at the scene of the occurrence on the relevant date was also, not probable because it was Holi-festival day and there was holiday on the relevant date. According to this witness, though it was a holiday, but he came to the Office at 11.00 a.m. and assisted the Deputy Superintendent of Police in the investigation and as he assisted the Deputy Superintendent of Police in the investigation, therefore, he recorded his presence in the attendance register otherwise he was not on duty. The conduct of this witness in bringing the Attendance Register in the lower Court on the date when he was to be examined while he was not asked to bring that, clearly shows his over anxiety in the matter to show himself as a truthful witness. This witness has, also, tried to make some improvements in his statement from the First Information Report lodged by him. According to him, the incident took place at about 1.00 p.m. and the report was lodged at about 1.15 p.m. and he lodged the written report. In the short span of fifteen minutes, all this could not have been done. Moreover, according to the prosecution itself, Roopa died at the scene of the occurrence. According to him, the incident took place at about 1.00 p.m. and the report was lodged at about 1.15 p.m. and he lodged the written report. In the short span of fifteen minutes, all this could not have been done. Moreover, according to the prosecution itself, Roopa died at the scene of the occurrence. If Roopa died at the scene of the occurrence then it was not expected from Shambhu Nath (PW 4) at least, who was a Literate Constable, to carry the deadbody there and should have guarded the dead-body and not to take it to the hospital. Though he tried to make improvements later on that there was some life in the body of Roopa and he died during the time he was being taken to the hospital. He was the resident of the same village and was posted at the Police Station for the last three years and according to him, about 100-150 persons collected there after the occurrence, but he could not identify any of them and could identify only one witness Kalu Lal and that witness has, also, not supported the prosecution case. This witness was even given- up by the prosecution and was produced by the defence. No person from this melee of 100-150 persons has been produced by the prosecution to support the prosecution case. Those witnesses, who carried the deadbody of Roopa to the hospital on a "Thela' were, also, not examined and this witness has stated that he does not know the names of those persons. An over-all reading of the statement of this witness clearly shows that he has not seen the occurrence and being a police constable, he has been produced by the prosecution to support the prosecution case and his evidence, therefore, does not inspire any confidence. 7. There is one more aspect of the case that the deadbody of Roopa was taken to the hospital but the post-mortem on the deadbody of Roopa was not conducted by PW 3 Dr. Kailash Chand Jindal at the hospital and the same was conducted near the bridge of river Sugli. How the deadbody was found there, is, also, a mystery. There is one more aspect of the case that the deadbody of Roopa was taken to the hospital but the post-mortem on the deadbody of Roopa was not conducted by PW 3 Dr. Kailash Chand Jindal at the hospital and the same was conducted near the bridge of river Sugli. How the deadbody was found there, is, also, a mystery. No independent witness of the occurrence, who might have seen the incident or any person from the 100-1 50 persons, who collected there, has been examined by the prosecution and only one police witness and the other substituted witness, i.e., PW 2 Mangla S/o Kaniya who is the real brother-in-law of the deceased Roopa) have been examined to support the prosecution case who have supported the prosecution case and the other eye witnesses have not supported the prosecution case. A careful scrutiny of the evidence of the witnesses, produced by the prosecution, would reveal that these witnesses do not inspire confidence and the prosecution has failed to prove its case against the accused- appellants beyond any suspicion and in this view of the matter, we are of the opinion that the learned Sessions Judge was not justified in convicting the accused-appellants. 8. In the result, we allow this appeal, set-aside the conviction and sentence passed by the learned Sessions Judge, Udaipur, and acquit the accused-appellants of the offences they were charged- with. Accused/Appellant Dhaniya is in jail. He shall be released forthwith if not required in any other case. But so far as accused-appellant Lalia is concerned, he is on bail and his bail- bonds are cancelled. He need not surrender if he is not required in any other caseAppeal allowed. *******