Honble YAMIN, J. – Accused Ramla has been convicted and sentenced for life imprisonment for offence u/s. 302 IPC by learned Sessions Judge, Udaipur vide his judgment dated 14.2.1994. (2). The case of prosecution against the appellant is that PW 1 Bhera reported to the Police Station Jhadole on 12.2.1993 that accused appellant was quarrelling with his brother Puna for 4-5 days alleging that Puna had practiced magic on him. At about 3 a.m. on 12.2.1993 Ramla came with Kulhari in his hand and inflicted Kulhari blows on the head of Puna. Puna made hue and cry then Bhera PW 1 and Puna s/o Nathu PW4, Hurma PW 3 and Bheras brother reached at the spot. Seeing them accused appellant ran away with Kulhari. Puna died at the spot and his dead body was lying there. Case u/s. 302 IPC was registered by PW 17 Abdul Yakub. During the investigation Panchayatnama Ex. P/2 was prepared. Doctor Anandilal performed post-mortem. Site plan was prepared by Abdul Yakub. Blood smeared soil and control soil as well as blood smeared chaddar were seized by the police vide Ex. P/9. Accused appellant was arrested on 13.2.1993 and on the same day he gave an information Ex. P/2 on the basis of which Kulhari was recovered by PW 17 Abdul Yakub before Megha and Koja vide Ex. P/13. Blood smeared shirt was also recovered. Accused appellant faced trial and was sentenced as stated above. He filed this appeal from Jail. (3). We have the learned amicus curiae as well as learned Public Prosecutor. (4). Learned heared amicus curiae appearing on behalf of appellant submitted that PW 1, PW 2, PW 3 and PW 4 though examined as eye-witnesses do not prove the case of the prosecution as they could not have seen the accused inflicting Kulhari blows. He also submitted that though Kulhari and T-shirt were sent to the FSL yet the report has not been submitted and the inference will be that it did not support the case of the prosecution, therefore, the accused appellant deserves acquittal. On the other hand, learned P.P. submitted that PW 1 Bhera who is the real brother of deceased saw accused appellant inflicting Kulhari blows on the deceased. Later on Bhurelal saw the accused appellant going alongwith Kulhari, therefore, the case of the prosecution is well proved. (5). We have gone through the entire evidence on record. On the other hand, learned P.P. submitted that PW 1 Bhera who is the real brother of deceased saw accused appellant inflicting Kulhari blows on the deceased. Later on Bhurelal saw the accused appellant going alongwith Kulhari, therefore, the case of the prosecution is well proved. (5). We have gone through the entire evidence on record. PW 2 Dhanna stated that he was asleep in his house which is about either one or a half km. away from the house of Puna. He heard a noise at about 4 a.m. and reached the house of Puna within half an hour. According to him accused appellant Ramla inflicted Kulhari blow on Puna and Puna died then and there. Thereafter Ramla ran away with Kul- hari. When he was cross-examined by the prosecution itself he admitted that when he reached the place of incident Ramla appellant was not present and he did not see Ramla inflicting any blow. He maintained it during the whole cross- examination that he did not see the appellant inflicting blows on Puna. He had simply heard from others. PW 3 Hurma also heard a noise and went to the place of occurrence. In examination in chief he stated that he saw accused appellant inflicting injuries by Kulhari to Puna but in the cross-examination he admitted that he saw Puna lying on the ground. According to him only Bhera, Naina and he himself were present. PW 4 Nanu was living separately from Puna. He is a son of deceased Puna. He heard the noise of his father Puna who was crying that Ramla was giving beatings to him. Then he rushed towards his father and found that Puna was lying on the ground and Ramla appellant was having a Kulhari in his hand. He has admitted in the cross- examination that there are two fields in between his house and the residence of his father and each one of them measures two bighas. He was having a sound sleep at about 3 a.m. when he heard the noise. In the circumstances he could not have heard the noise from such a distance when he was in deep sleep. It appears that he did not see the accused appellant inflicting Kulhari blows on his father Puna. (6). He was having a sound sleep at about 3 a.m. when he heard the noise. In the circumstances he could not have heard the noise from such a distance when he was in deep sleep. It appears that he did not see the accused appellant inflicting Kulhari blows on his father Puna. (6). PW 5 Sardara has admitted that when he reached at the place of occurrence he did not find the accused appellant though it was suggested by the Public Prosecutor while cross-examination this hostile witness that he had seen Ramla running. He did not see Ramla at all. (7). Deeta PW 10 and Rupa PW 9 stated what they have heard. Rupa PW 9 went to the house of Puna at 10 a.m. next day and he was told by Bhera that it was Ramla who inflicted injuries to Puna. Deeta PW 10 went in the night itself but he did not find the accused appellant there. Neither did he see accused appellant in- flicting any blows on Puna. According to him it were Bhera, Hurma and Nanu who told him that Ramla had inflicted injuries to Puna. (8). It is only PW 1 Bhera who is the most important witness. He has stated that at about 3 a.m. he heard a noise. He then ran to the place of occurrence. According to him Hurma and Naina had also arrived there. He saw that accused appellant inflicted Kulhari blows on the head of Puna. He had also inflicted another blow on the stomach of Puna. This witness has admitted that it was a dark night and he arose from the deep slumber after hearing noise. His house is about 150 feet away from the residence of Puna from where he could reach after 15 minutes of hearing the noise. When he reached there he found that Puna was lying on the ground and at that time accused appellant was inflicting Kulhari blows. It is he who reported the matter to the police. The report lodged by him is Ex. P/1. According to FIR accused appellant had come to the place of occurrence at about 3 a.m. with a Kulhari and inflicted its blows on Puna. He reached after hearing the noise and Nanu as well as Hurma also came there then accused appellant ran away with Kul- hari after seeing them. (9). The site plan Ex. P/1. According to FIR accused appellant had come to the place of occurrence at about 3 a.m. with a Kulhari and inflicted its blows on Puna. He reached after hearing the noise and Nanu as well as Hurma also came there then accused appellant ran away with Kul- hari after seeing them. (9). The site plan Ex. P/8 indicates that house of Bhera is situated on Northern side of the house of Puna. In between two houses there is a field of Puna. Therefore, when the house of Bhera is about 150 feet it would not have taken him 15 minutes to reach. However, even if he reached within five or six minutes of hearing the cry he could not have seen the accused appellant inflicting Kulhari blows. The place where Puna was lying is an open place and was approachable to anybody. At that dead hour of night when according to this witness there was pitch darkness he could not have seen accused appellant inflicting Kulhari blows to Puna. Bhera PW 1 is the real brother of Puna and since Ramla was alleging that Puna was playing magic, he had reason to involve the accused appellant. Bhera does not appear to be a witness of sterling worth as he could not have taken 15 minutes to reach at the place of occurrence instead he could have reached within five minutes or so. The post-mortem report prepared by PW 11 Dr. Anandilal Sharma which is Ex. P/4 proves that deceased had injuries which could be inflicted in supine condition. Puna could not have made any resistance. So the question of making hue and cry does not arise. Bhera or other witnesses could not have heard the noise before reaching at the place of occurrence. The statement of Bhera does not inspire confidence. (10). PW 6 Bhurilal has stated that at about 2 or 3 a.m. he heard the noise from the house of Puna. When he was going, he found Ramla going to his house with an axe in his hand. When he reached to the house of Puna he found that dead body of Puna was lying on the ground and also found injury on the right parietal region of Puna. He was old that Ramla had given Kulhari blows and ran away. When he was going, he found Ramla going to his house with an axe in his hand. When he reached to the house of Puna he found that dead body of Puna was lying on the ground and also found injury on the right parietal region of Puna. He was old that Ramla had given Kulhari blows and ran away. When the case of the prosecution was that it was Ramla who ran away with Kulhari after inflicting blows on the body of Puna natural conduct of accused appellant would be to run swiftly. Instead according to Bhurilal accused appellant was going in ordinary way. This was not possible. Therefore, PW 6 Bhurilal cannot be relied to prove that he had seen accused appellant immediately after the occurrence going with Kulhari to his residence. Some of the witnesses have stated that it was a moon lit night. Since it was Shukla Paksh, moon would not be visible at that hour. (11). Now we come to the recoveries. According to PW 17 Abdul Yakub, accused appellant was arrested on 13.2.1993 and he gave an information regarding Kulhari and the same was recovered at his instance vide Ex. P/2. A blood smeared T-Shirt was also seized vide Ex. P/13. Both of them were sealed and were sent for chemical examination. Kulhari and T-Shirt were not exhibited during trial. The learned Sessions Judge took pains to obtain FSL report by writing D.O. letter to the Superintendent of Police Udaipur. To our surprise even then FSL report has not been produced. So it cannot be concluded that accused appellant had used the same Kulhari in committing the offence. Similarly, the shirt of the accused which is said to have blood stained has also not been produced. It cannot be concluded that shirt had blood stained. Non-production of FSL report is definitely fatal to the prosecution in the circumstances of this case. (12). In view of above discussion, accused appellant deserves acquittal. The appeal is allowed and the accused appellant Ramla is acquitted of the charge of U/s. 302 IPC. He is in custody and shall be set free immediately if not required in any other case.