Honble KOKJE, J. – Heard Mr. Niranjan Gour, amicus curie, appointed by the court for the appellant and Mr. V.R. Mehta, learned Public Prosecutor, perused the record. (2). The appellant has been convicted on a charge under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment. This is an appeal against the conviction and the sentence. (3). The appellant was prosecuted alongwith one Badji, who has been acquitted by the trial court of the charge under Section 302 read with Section 34 I.P.C., F.I.R. was lodged against the appellant and Badji at the Police Station, Dhariyawad on 20.8.92 by Chunia P.W. 1 alleging that his father was done to death by Galla by means of sword and Badji was with him. The incident was said to be of 19th August, 1992 at 7.00 P.M. and the report was lodged at 6.00 A.M. on 20th August, 1992, at a Police Station, which was at a distance of 15 kilometers. (4). The prosecution case rests on the testimony of four witnesses who are said to have seen assault and the evidence as to recovery of the weapon of offence an axe. P.W. 1 Chunia, who lodged the F.I.R. and who is the son of the deceased, P.W. 2 Smt. Soomi the wife of the deceased, P.W. 7, Smt. Ratan, the daughter-in-law of the deceased and P.W. 8 Ramesh, a child witness of 14 years age, who is the son of the deceased, were examined by the prosecution as eye-witnesses. (5). P.W. 1 Chunia supported the prosecution version in the examination in chief but, in his cross-examination, he candidly admitted that when he came out of the house his father was sitting alone on the cot and he had not seen Galla inflicting a blow on the deceased. He also stated that when he had come out the accused had already run away. He stated that his wife Smt. Ratan was sitting in the Patiyal where his father was attacked while he was sitting on a cot. He admitted that he did not identify the assailant as he had not seen him. He further admitted that he had lodged the report on the instructions of his brother Ramesh. He also stated that there were 4-5 houses in the neighbourhood and all these neighbours were in their house at the time of the incident. He admitted that he did not identify the assailant as he had not seen him. He further admitted that he had lodged the report on the instructions of his brother Ramesh. He also stated that there were 4-5 houses in the neighbourhood and all these neighbours were in their house at the time of the incident. He also stated that one Girdhari Singh, his neighbours had also come out but no one else came on the spot. He also deposed that he had narrated to the neighbours the entire incident. He further deposed that the cot on which the deceased was sitting was drenched in blood but the police did not seize the cot. He admitted in the cross-examination that the re- port was lodged on the next day after deliberating with Nathu and Shanker throughout the night. It has also come on record, in his statement, that they were not on good terms with accused Galla, who was son-in-law of the uncle of the witness. He also admitted that his father and uncle were not pulling on well. (6). P.W. 2 Smt. Soomi, wife of the deceased also stated in examination in chief that her son Chunia and her husband Ujma had returned from the market together and Ujma sat in the Patiyal on the cot. Accused Galla and Badji came there. Galla had a sword in his hand and he gave a blow, which killed Ujma. The accused persons ran away from the spot. In her cross-examination, she stated that she herself, Chunia, Ratan and Ramesh were inside the house and the deceased was sitting in the Patiyal on a cot. She also stated that the cot on which the deceased was sitting was drenched in blood. She further admitted that she had a poor eye- sight and she cannot see clearly in the night. She also admitted that she could not identify the accused persons in the dark from a distance of about 15 ft. Then she categorically admitted that she had rushed out of the house on hearing a noise and, by that time, the assailants had run away. She further stated that when she saw the accused persons at the time of occurrence, they were running away at a distance of 400 meters and she had seen them from behind. Then she categorically admitted that she had rushed out of the house on hearing a noise and, by that time, the assailants had run away. She further stated that when she saw the accused persons at the time of occurrence, they were running away at a distance of 400 meters and she had seen them from behind. She also admitted that several persons were coming and going on the road near the incident. She had also stated that after hearing the noise, Smt. Ratan and Ramesh had come out of the house and she was the first to have come out amongst them Chunia, Ramesh and Ratan had come out of the house on hearing her calls. (7). P.W. 7 Smt. Ratan, the daughter-in-law of the deceased, stated in her examination in chief that accused persons came and Galla attacked the deceased with a sword. In her cross-examination, she stated that she was cooking food inside the house at the time of the incident. (8). P.W. 8 Ramesh a boy of 14 years, the other son of the deceased, repeated the prosecution story in his examination-in- chief. In his cross-examination, he introduced a new story by saying that, half an hour prior to the incident, the accused persons were seen by him armed with swords, passing near his house. Ultimately, he stated in his cross-examination, that, in the night, Shanker and Nathu had come to their place and his brother Chunia went alone with them in the night to lodge a report at the Police Station. He returned with Shanker and Nathu at 2.00 A.M. In the night and his brother told him and to his mother that he had lodged a report at the Police Station. He stated that till that time, they were not knowing the names of the assailants. (9). In the cross-examination of these four alleged eye-witnesses, many ommissions have been pointed out in the statements made by them to the Police under Section 161 Cr.P.C. Howsoever, liberal assessment of the statements of these wit- nesses is made, it cannot be said that they were infact eye-witnesses. Each one of them had admitted not to have seen the assailant in the act of inflicting injury. Each one of them has stated that there was blood on the cot which was not taken into possession by the police. Each one of them had admitted not to have seen the assailant in the act of inflicting injury. Each one of them has stated that there was blood on the cot which was not taken into possession by the police. It is also clear that there were independent witnesses who could have supported the prosecution case but no effort was made to locate them by the investigating Officer. The witnesses have admitted that there were 4-5 houses in the neighbourhood which were all inhabited and actually one of the neighbours Girdhari Singh had appeared on the scene. It has also come in the evidence of these witnesses that the house in which the incident took place was situated on a public way and even at the time of the incident people were passing through the public way. In such circumstances, a murderer would not attract anyone from the neighbourhood or from anyone of the passers-by cannot be countenanced. (10). Apart from the eye-witnesses, the other evidence in the case is of P.W. 9 Shanker, who had come on the spot after the incident. He was declared hostile and the public prosecutor was permitted to cross-examination. He has completely destroyed the evidence as to the recovery of sword. He had even stated in his cross-examination that they were not knowing, who was the assailant till the FIR was lodged at the Police Station. (11). In the aforesaid State of evidence, it is extremely difficult to uphold the conviction. The learned Sessions Judge has referred to a Plethora of case law in his judgment and it appears that his vision was blurred by the voluminious case law referred by him. In a case based on facts, law has to be applied to the facts and not vice-versa. The learned Sessions Judge seems to have fallen in the error of applying facts to the law. When the prosecution case is based on direct evidence of eye- witnesses, on failure of the case on eye-witness account, the evidence as to recovery of the weapon of offence would lose much of its value. In the present case, not only that the eye-witnesses cited by the prosecution admitted that they had not seen the actual assailant, even the recovery of a weapon of offence has not been proved. In the present case, not only that the eye-witnesses cited by the prosecution admitted that they had not seen the actual assailant, even the recovery of a weapon of offence has not been proved. One of the witnesses of the memorandum of information under Sec- tion 27 of the Evidence Act and of the recovery, Shanker who was examined in the case as P.W. 9, categorically denied having witnessed the giving of information about or the recovery of the sword. The other witness Nathu was not examined by the prosecution and the only evidence which remains is of the investigating officer P.W. 14. No reliance can be placed on such evidence for holding that the weapon of offence was infact recovered at the instance of the accused person from his possession. (12). We, therefore, find that the prosecution has utterly failed to prove the guilt of the accused-appellant. The conviction and the sentence is, therefore, set aside and the appellant is acquitted of the charge under Section 302, I.P.C. He shall be released forthwith, if not required in any other case.