JUDGMENT 1. - This appeal is directed against the judgment dated 19th June, 1992 of Additional Sessions Judge, Bundi, whereby the appellants have been convicted and sentenced as under:- Name of appellant Convicted U/s. Sentence 1. Beswa 302/34 IPC Life imprisonment and fine of Rs. 500/-, in default, 3 months simple imprisonment 2. Pratap 302 IPC 3. Richhu 302 IPC 2. On 2.10.1990, at about 1.45 pm, complainant Man Singh gave an oral report at Police Station Kota Dam alleging that he is resident of Jhabua and doing labour work at the mines of Ghanshyam, contractor. Some other Bheels also came for labour work in the mines. He further alleged that yesterday at 5.00 p.m., he along with his brother-in-law Chittu went to Lamba Khch village for grocery items. In Malba Khoh, accused Beswa, Pratap and Richhu met them. They arc also labourers in the mines and known to them and distant relations also. The after purchase of grocery and house-hold items, deceased and informant left Lamba Khoh at about 9 p.m. and after crossing the river, they reached near the way to Badpu. At that time the accused appellants were following them and Pratap gave call from the other side of river and asked to stop. Accused Richhu, Beswa and Pratap came near to the complainant and deceased. Accused Richhu abused his brother-in-law (Chittu) and told that he has ill-intention towards his wife and molested her. Chittu said that he has not molested his wife. On that, there was scuffle and Chittu was knocked down by Beswa, and accused Richhu took a stone and hit on the head of Chittu. Then Pratap also look another stone and hit on the head of Chittu. Accused Beswa has caught hold the complainant. Result of these injuries was that brain matter of Chittu has come out and he died on the spot. The complainant tried to intervene but Beswa has given one stone blow on the leg of complainant. Thereafter complainant went to the house of his father-in-law Chandu and brother-in-law Raju in village Ganeshpura. They all came at the place where dead body of deceased Chittu was lying. The FIR was lodged and the matter was investigated by I.O. Surendra Vyas. During investigation, the site plan and panchnama of dead body of deceased were prepared. Thereafter complainant went to the house of his father-in-law Chandu and brother-in-law Raju in village Ganeshpura. They all came at the place where dead body of deceased Chittu was lying. The FIR was lodged and the matter was investigated by I.O. Surendra Vyas. During investigation, the site plan and panchnama of dead body of deceased were prepared. Blood stained clothes of deceased were seized and scaled and sent to FSL for report and two blood stained stones were also seized and sealed and sent to FSL for report. The post mortem of the dead body was got conducted. The statements of witnesses were recorded under section 161 Cr.P.C., and thereafter, challan has been filed against all these three accused appellants for the aforesaid offences. The accused appellants have not pleaded guilty and asked for trial During trial, the prosecution has examined as many as 10 witnesses and thereafter the statements of accused appellants were recorded under section 313 Cr.P.C. 3. Considering the material on record, the learned trial court came to the conclusion that prosecution has proved its case beyond reasonable doubt that accused appellants have committed the murder of Chittu. Therefore, the accused appellants have been convicted and sentenced as aforesaid. Being aggrieved, the accused appellants have preferred this appeal. 4. Heard learned counsel for the appellants and learned Public Prosecutor for the State. 5. PW. 1 Man Singh is the star witness who claimed to have seen the incident. As per his deposition, he alongwith his brother-in-law Chittu deceased went to Lamba Khoh to purchase some household articles. In Lamba Khoh, they met with the accused appellants and accused appellants were known to them. They are from the same community and same place, therefore, they took tea together in Lamba Khoh. After tea, they left Lamba Khoh for Kolipura. When they crossed the river, Pratap gave call from the other side of the bank and asked them to stop. On the call of Pratap, PW. 1 Man Singh and deceased Chittu wailed for them and Ricchu, Beswa and Pratap came closer to them. When the accused appellants came closer to Pw. 1 and deceased, Richhu abused to deceased that he had ill-intention on his wife and molested her. Chittu denied the allegation. After altercation between Chittu and Richhu, there was scuffle between them and Richhu knock him down. When the accused appellants came closer to Pw. 1 and deceased, Richhu abused to deceased that he had ill-intention on his wife and molested her. Chittu denied the allegation. After altercation between Chittu and Richhu, there was scuffle between them and Richhu knock him down. Then Pratap gave a stone blow on his head, then Richhu also gave one stone blow to deceased. The brain matter of deceased has come out. He died on the spot. It happens at about 9.00 p.m. After this occurrence, Pw. 1 Man Singh straightaway went to Ganeshpura to father of deceased and he told about the incident to him. Then he told about the incident to Raju and Pcedu, brothers of deceased and also informed Karam Singh, co-brother of Pw. 1. 6. In the morning at about 8.00 a.m., they went on the spot, saw the dead body of deceased and thereafter Pw. 1 Man Singh reported the matter to Police Station Kota Dam. 7. Pw. 1 Man Singh is the only eye witness. Therefore, it is to be seen whether he is a witness of sterling worth. The incident took place at about 11.00 p.m. on 1.10.90. The matter was reported to the police on the next day at 1.45 p.m. As per statement of Man Singh Pw. 1, after incident, immediately he went to Ganeshpura and informed Chandu, father-in-law of informant Man Singh. If the matter was reported to the father of deceased, why they reached at 8.00 a.m. on the next day, it means they have taken 7-8 hours in reaching to the spot. Not only that, in the statement of Pw. 6 Chandu, it is alleged that Man Singh came before 6.00 a.m. on 2.10.90, that means, either Man Singh or Chandu telling lie regarding the fact that when Chandu has been informed about the incident by Man Singh. It is normal human conduct that if father hears the news regarding death of his son, immediately he rush to the place where the dead body of his son is lying and not sleep at his house. It is normal human conduct that if father hears the news regarding death of his son, immediately he rush to the place where the dead body of his son is lying and not sleep at his house. If Chandu has been informed about the death of his son Chittu immediately he would have rushed to the place of incident where the dead body of Chittu was lying and that too the place of incident is not far from village Ganeshpura and that further shows Chandu, Raju and Man Singh went on the site only at 8.00 a.m. next day and that is not in dispute. Therefore, the statement of Chandu Pw. 6 appears to be correct regarding the fact that Man Singh has informed him just before 6.00 in the morning. The incident took place at 11.00 p.m. in the night. Where Man Singh remained for 8 hours, no explanation has been given. 8. Even Pw. 9 Raju brother of deceased has stated that when Man Singh informed about the incident to his father Chandu, he was present. That also shows that Raju has also been informed at about 6.00 in the morning and Man Singh has not informed either of them or any other person in the night itself. Therefore, he is not wholly reliable witness in this case and conviction cannot be upheld only on the sole testimony of Pw. 1 Man Singh. 9. The prosecution has tried to show the motive behind the murder that deceased had ill-intention on the wife of Richhu, but nobody supports this part of the story except Pw. 1 Man Singh who is not a reliable witness. On the contrary, in the statement under section 313 Cr.P.C. these accused appellants have levelled the allegation against Man Singh that there is enmity between Pw. 1 Man Singh and accused appellants, therefore, they have falsely been implicated by Man Singh in this case. 10. Further, as per statement of Pw. 1 Man Singh, the brain matter of deceased has come out as a result of injury caused by stones, but the medical evidence i.e. post mortem report does not support the version of Pw. 1 Man Singh nor any other witness has supported his statement. As per post mortem report, there were only two injuries and nowhere it has been mentioned by Dr. Goyal (Pw. 7) that brain matter has come out. 1 Man Singh nor any other witness has supported his statement. As per post mortem report, there were only two injuries and nowhere it has been mentioned by Dr. Goyal (Pw. 7) that brain matter has come out. He opined that cause of death is head injury and he further stated that both the fractures can be caused by one stone blow. He also stated in his statement that the deceased could be saved if he got the medical aid timely. 11. Pw. 10 Surendra Vyas, 1.0. who supports the case only to the extent that he has prepared site plan, panchnama of dead body, seized and scaled blood stained control soil, blood stained stones and sent them for FSL report The FSL report supports the case of prosecution that two stones, which were sent for examination, arc stained with human blood. That only proves that deceased Chittu has been murdered but whether it can be said that he has been murdered by the accused appellants? 12. If we turn back to FIR again, the FIR has been lodged by Man Singh Pw. 1 and in that he categorically named these three persons and it is alleged that first Beswa has knock down the deceased, then Richhu look a stone and threw it on the head of deceased and then Pratap has look other stone and caused second stone injury on the head of deceased. During that, Beswa has caught hold the deceased. But in his statement in court, he has changed his version and slated that Richhu has abused him and then scuffle look place between Richhu and Chittu. Then Richhu knock him down. Thcrealtcr, Pratap has caused stone injury on the head of deceased. Then Richhu also look the stone and threw it on the head of deceased. He totally saved Beswa. That is a material contradiction and omission in his statement, in the court. 13. It is true that it can be a case of murder and accused appellants might have committed the murder of deceased, but, prosecution has failed to prove its case beyond reasonable doubt as far as neither the prosecution has proved motive. The eye witness Pw. 1 Man Singh is not a reliable witness. There arc material contradictions in his statement. It is true that it can be a case of murder and accused appellants might have committed the murder of deceased, but, prosecution has failed to prove its case beyond reasonable doubt as far as neither the prosecution has proved motive. The eye witness Pw. 1 Man Singh is not a reliable witness. There arc material contradictions in his statement. Not only that, it has come in the statement under section 313 Cr.P.C. of accused appellants that there was a dispute over work between Pw. 1 and the accused appellants. Therefore, he has falsely implicated these accused appellants. The prosecution has also failed to explain why Pw. 1 Man Singh has not informed about the occurrence in the night itself to Pw. 6 Chandu and Pw. 9 Raju. Where Man Singh remained from 11.00 pm to next morning 6.00 am. Some relevant basic facts have been suppressed either by the prosecution or by Man Singh Pw. 1 who is the only eye-witness in this case. This raises a serious doubt in the prosecution story. Even possibility cannot be ruled out that he has committed the murder of Chittu and faiseiy implicated the accused appellants. Mere serious doubt on the accused appellants cannot take place of proof of commission of offence by the accused appellants as alleged. 14. Not only that, there are four injuries found on the person of deceased at the time of post-mortem and in the opinion of Doctor, the cause of death is head injury. Who caused the head injury whether Richhu or Pratap and when they caused only two injuries, how four injuries are found on the person of deceased. That also prosecution has failed to explain. 15. In view of the facts stated above, the trial court has committed error in convicting the accused appellants Richhu and Pratap under section 302 IPC and Beswa under section 302 read with section 34 IPC. 16. In the result, the appeal is allowed and conviction and sentence of accused appellants is set aside. They are acquitted and they be released forthwith, if not required in any other case. *******