JUDGMENT 1. - The learned Addl. Sessions Judge, Dacoity Affected Area, Karauli has convicted the accused-appellant Bhartu @ Bharat Lal under Section 11 Indian Penal Code under his judgment dated 19th December, 1991 and the accused-appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo 6 months rigorous imprisonment. Along with the accused-appellant one Dhanji was also tried but he was convicted under Section 323 Indian Penal Code and was given benefit of Section 4 of the Probation of Offenders Act, 1958 and he has not file the appeal. 2. The occurrence is said to have taken place on 5th August, 1989 at about 7.30 p.m. in village Boda Gaon, Police Station Sapotra, and as per the case of the prosecution, the accused-appellant along with Dhanji stopped the deceased who was going along with Hari Prasad P.W.12. The accused-appellant is said to have assaulted the deceased with a naked sword and Dhanji accused with a lathi. No sooner the accused-appellant saw the deceased and Hari Prasad, it is said that they said that the enemy has come and he should not escape and on this accused-appellant Bharat Lal is said to have caused an injury with a naked sword to Ramlal on his neck. He is said to have repeated the sword blows 2-3 times. Ram Lal fell on the ground and then Hari Prasad P.W.12 tried to intervene. Dhanji is said to have given lathi blow on his head and the accused-appellant gave a blow by his sword, as a result of which the thumb of P. W.12 Hari Prasad was chopped off. Hearing the alarm P.W.3 Ramji Lal P.W.4 Seriya are said to have been attracted. Sanwalia P.W.10 father of the deceased Ramlal filed a report and the case was registered under Sections 302, 326, 324, 323, 302/34, 326/34 and 324/34 Indian Penal Code. The post-mortem was conducted on the dead-body of Ramlal and Dr. Thande Ram PW-7 conducted it and found that there were incised wounds on the dead body. His thorexpluera pericardium were cut and in the opinion of the doctor, the deceased died as a result of the injuries. He had also examined P.W.12 and found following injuries on his person: 1. Incised would 5 c.m.X.5 cm, just right upper arm directed to laterial to media. 2. His thorexpluera pericardium were cut and in the opinion of the doctor, the deceased died as a result of the injuries. He had also examined P.W.12 and found following injuries on his person: 1. Incised would 5 c.m.X.5 cm, just right upper arm directed to laterial to media. 2. Lacerated wound 5 cm X 1cm X 1 cm in front of head. 3. Lacerated wound 3cm X.5 cm X l cm on the thumb of right hand. 4. Abrasion 2 cm X.5 cm. on the nose. In the opinion of the doctor injury No. 1 was caused by the sharp edged weapon and the other by blunt weapon. 3. The accused-appellant along with Dhanji was tried and stood on a bare plea of denial. After the close of the prosecution evidence, the accused of appellant was examined and he denied the case prosecution. He did not examine any witness in defence. The learned Sessions Judge did not place reliance on the testimony of P.W.4 Seriya as well as Sanwaliya P.W.10. The finding has been recorded that each of them had come to the spot after the incident and after hearing the alarm. P.W.3 Ramji Lal did not support the case of the prosecution and was declared hostile. Placing reliance on the testimony of P.W.12, the learned Sessions Judge convicted and sentenced the accused-appellant. 4. We have heard the learned Counsel for the appellant and the learned P.P. and the learned Counsel for the appellant has not disputed that Ramlal died as a result of the injuries. It has been contended by him that only on the sole testimony of Hari Prasad P.W.12, it will not be safe to convict the accused-appellant for an offence carrying capital punishment. According to the learned Counsel, so far as the fact of Hari Prasad having received injuries in the same incident is concerned, it is not borne out from the record that he received the injuries in the same occurrence and only on that ground it cannot be held or at any rate it will not be safe to hold that he was present at the spot and witnessed the occurrence. The learned Counsel has taken us through the statement of Hari Prasad P.W.12 and has said that he has made contradictory statement over his previous statement and cannot be said to be a witness of sterling worth. The learned Counsel has taken us through the statement of Hari Prasad P.W.12 and has said that he has made contradictory statement over his previous statement and cannot be said to be a witness of sterling worth. We have, therefore, to go through the statement of Hari prasad P.W.12 and to see whether or not his evidence inspires confidence. 5. Sanwaliya P.W.10, the father of the deceased Ramlal, in the FIR Ex.P-1, which was lodged by hint has professed to be an eye-witness, but the learned Sessions Judge, as said above, has held that he had not witnessed the occurrence and had reached the place of occurrence after the incident had taken place. There is no immediate cause on the record for the incident which is said to have taken place at about 7.00 p.m. on the day of occurrence i.e. 5th August, 1989 and as per the case of the prosecution, it was about 2 years prior to the occurrence that some incident had taken place in the village when a marriage procession was taken out in the village of persons belonging to Scheduled Caste, the bridegroom was riding on a horse and an objection is said to have been taken by the members of the Rajput caste of the village and the accused-appellant who is Rajput by caste is said to be one of them and as a result of that incident the present occurrence is said to have taken place. It is not possible for us to come to the conclusion that an incident of the aforesaid type which had taken place about 2 years ago would have been the reason for the present incident and more so when in the statement of Hari Prasad it is on the record that after the aforesaid incident the marriage processions of persons belonging to Scheduled Caste had passed and the bride-grooms of that caste have passed through the village riding on a horse. Be that as it may be. The question as said above is as to whether or not the statement of the sole witness is such, which can be relied upon. 6. Be that as it may be. The question as said above is as to whether or not the statement of the sole witness is such, which can be relied upon. 6. P.W.12, Hari Prasad stated that when the accused-appellant gives a blow by a sword to Ramlal on his neck, Ramlal had fallen on the ground, he (Hari Prasad) made an attempt to save him and then Dhanji had given a blow by lathi on his head and when he tried to intervene and to save Ramlal, his thumb of the right hand was cut. He raised an alarm, on which Sanwaliya, Seriya and Ramjilal had come and then Bharat Pal, the accused-appellant and Dhanji ran away. According to the statement, it was Sanwaliya, Seriya and Ramjilal who had lifted Randal and took him to his house. He (Hari Prasad) went to his house and became unconscious and remained unconscious upto the next morning i. e. 6th August, 1989. During the course of cross-examination, he states that he identified the accused from about 5 to 7 steps though it was still raining. Faces of the accused-appellants could not be identified from a distance of 20 steps but he could identified them by their voice. He has made a categorical statement that Bharat Pal had not caused any injury by his sword to him but he had caught bold of the sword and has received an injury on his thumb. He had also received injury on his hand by a sword. It has been admitted that there are many houses of Harijans by caste not far away from the place of the occurrence. It is also admitted that hardly at a distance of 15 steps from the place of occurrence the houses of Ibrahim and Allahnoor, and Buddhu Sain are situated. They are residing in those houses. The house of Mitthu is at some distance away. It is also admitted that the house of Purshottam and his brother and one Prabbu Koli are also nearby the place of occurrence, and so also the other Harijans live in the house nearby but according to the statement despite the fact that he had raised an alarm, none had come because it was still raining and only 3 persons named above had come to the spot. As said above, all the 3 persons have been disbelieved by the learned Sessions Judge. 7. As said above, all the 3 persons have been disbelieved by the learned Sessions Judge. 7. A look at the injury report, Ex.P-7 of Shri Hari Prasad, P.W.12 will show that he appears to have been examined in the hospital at the requisition of police. The examination took place on 6th August, 1989 at 9.30 a.m. a reference to the injuries found by the doctor has already been made in the earlier part of this judgment and at the cost of repetition, it may be stated that he had an incised wound of 5 cm X .5 cm, on the right upper arm just above elbow joint and he had a lacerated wound in the right hand thumb. So far as lacerated wound is concerned, in our opinion, it could not have been receive by a sword, could not have been received even if Hari Prasad PW 12 would have had held the sword, which the accused-appellant is said to have been carrying. The injury could only have been received by the lathi. There is another lacerated would on his other part. Thus he had 3 injuries, one incised and two by blunt weapons and as per the statement it has not been explained how he received the injuries. We are, therefore, unable to agree with him that be received the injury while he was trying to save Ramlal from the assault at the hand of the appellant and Dhanji. Once the injuries received on the person of Hari Prasad are not connected or possible not connected with the time of the occurrence, his presence at the time of the occurrence becomes doubtful. It has already been stated earlier that there are houses of Harijans by caste and it does not appeal to us that if Hari Prasad would have raised an alarm as said by him, none from amongst the persons residing nearby would have attracted. Thus in a case where independent witnesses available but for the reasons known to the prosecution none of them has supported the case of prosecution, none has been examined. 8. Apart from what has been stated above, conduct of PW 12 Hari Prasad, that he immediately goes to his house and sleeps does not report the matter to anybody, is abnormal. 8. Apart from what has been stated above, conduct of PW 12 Hari Prasad, that he immediately goes to his house and sleeps does not report the matter to anybody, is abnormal. He has admitted that it is correct that about 2 years prior to the occurrence the Rajputs had objected to the marriage procession being taken in the village and that was the only enmity and there was no other enmity. Thus in a case of the present nature, where there does not appear to be any motive of the crime, only on the testimony of PW 12 we are unable to uphold the conviction of the appellant for an offence carrying capital sentence. 9. Consequently, we hereby allow this appeal, set aside the judgment of the learned Sessions Judge. The conviction and sentence of the accused-appellant are hereby set aside. The accused appellant is acquitted of the charge under Section 302 Indian Penal Code. He is in custody and shall be released forthwith, if not wanted in any other case.Appeal allowed. *******