JUDGMENT 1. - The accused-appellant has been convicted for causing murder of Kalu Singh under section 302 IPC for imprisonment of life and a fine of Rs. 200/- in default, rigorous imprisonment for three months. Co-accused persons Moti Singh, Shanker Singh & Bhanwar Singh s/o Panney Singh were convicted under section 323 1PC and were given benefit of probation under the Probation of Offenders. Co-accused Guman Singh and Nathu Singh were acquitted. No appeal is filed by the State against Nathu Singh, Guman Singh Or by Mob Singh, Shanker Singh and Bhanwar Singh against their conviction. The present appeal is being filed by the accused-appellant Bhanwar Singh son of Panney Singh against the conviction under section 302 IPC. 2. The prosecution case in short is that on 26.10.1992 Guman Singh and Nathu Singh acquitted accused persons approached deceased Kalu Singh at his residence at village Atwal and took Kalu Singh alongwith them to see cattle fare. Bhanwar Singh PW 3 accompanied Kalu Singh and Gulab Singh PW 8, Shambhu Singh PW 4 and one Gul Singh followed them. When Kalu Singh reached Birothi, six persons, inclusive of Bhanwar Singh, the accused-appellant, surrounded Kalu Singh and attacked him. Bhanwar Singh accused-appellant was having a naked sword in his hand whereas the other persons had lathies. Bhanwar Singh inflicted injury on the head of Kalu Singh by the naked sword. Kalu Singh felt down. Bhanwar Singh tried to intervene and he had also received injuries at the hands of accused Moti Singh. Thereafter he was taken to the hospital and he succumbed to his injuries. 3. Kalu Singh succumbed to his injuries on 27.10.1992 at 5 a.m. A written FIR was lodged by Gulab Singh PW 8 on 27.10.1992 at '-Jaipur at 7 p.m. and it was then sent to Police Station Panrawa on 28.10.1992. Post-mor 'cern was conducted by Dr. Anis Ahmad PW 15 and his report is Ex. P/30. The doctor found one injury lacerated wound 5 x 1 cm, bony deep on vertex of skull and fracture on right parieto-frontal bones of skull and right temporal bone. The cause of death was recorded coma due to head injury. PW 15 Dr. Anis Ahmad has deposed that the cause of death is coma due to injury on the head and that injury was caused by blunt weapon. The cause of death was recorded coma due to head injury. PW 15 Dr. Anis Ahmad has deposed that the cause of death is coma due to injury on the head and that injury was caused by blunt weapon. The nature of the injury is such that it could not have been caused by sword. 4. PW 3 Thanwar Singh has stated in evidence that he has accompanied Kalu Singh deceased and Guman Singh and Nathu Singh for attending the fare. Kalu Singh was attacked by the accused persons. The accused-appellant Bhanwar Singh was having a sword and the other accused persons were armed with lathies. The accused persons surrounded him and Kalu Singh. Bhanwar Singh the accused-appellant inflicted injury on the head of Kalu Singh with sword. He tried to intervene and was 'attacked by Moti Singh. Kalu Singh fell down and thereafter he was taken to the hospital. The incident took place at about 4 p.m. and Kalu Singh died same day in the morning. In the cross-examination, the witness said that there were number of persons present on the road on account of fare but he is not in a position to tell anybody's name. Number of persons have witnessed the incident inclusive of the residents of village Birothi and Atwal but he is not in a position to tell their names. He knew the accused Shanker Singh and Nathu Singh from before and did not know the other accused persons. He had seen other four accused persons at the time of the incident for the first time. Their names were told to him by the police after their arrest. Bhanwar Singh had attacked Kalu Singh with sword from the sharp edged side. Kalu Singh died in the night. When the dead body of Kalu Singh was brought to the village Atwal, one Dhan Singh had told the names of the four accused persons. He has further said that Shambhu Singh PW 4, Gulab Singh PW 8 reached the place of incident after Kalu Singh received injuries on his head. Kalu Singh was his maternal uncle. PW 4 Shambhu Singh's statement is to the effect that he had followed Kalu Singh, Nathu Singh and Guinan Singh from village Atwal and he saw the incident. Bhanwar Singh the accused had inflicted injury on the head of Kalu Singh by sword. Kalu Singh was his maternal uncle. PW 4 Shambhu Singh's statement is to the effect that he had followed Kalu Singh, Nathu Singh and Guinan Singh from village Atwal and he saw the incident. Bhanwar Singh the accused had inflicted injury on the head of Kalu Singh by sword. He saw Bhanwar Singh inflicting sword injury to Kalu Singh from about 100 feet. Although there were number of persons on the road at the time of the incident inclusive of the persons of his own village Piroti, he is not in a position to name anyone of them. Bhanwar Singh inflicted sword injury from the sharp edged side. PW 8 Gulab Singh has deposed that Guman Singh and Nathu Singh took Kalu Singh to cattle fare. PW 3 Thanwar Singh accompanied them and he alongwith Shambhu Singh followed them. The accused-appellant alongwith other accused persons had surrounded Kalu Singh and Thanwar Singh. Bhanwar Singh was having a sword and the other accused persons were armed with lathies. Bhanwar Singh inflicted sword injury on the head of Kalu Singh. Kalu Singh became unconscious and fell down. On his way to the fare, number of persons were also going to attend the fare but he is not in a position to tell anybody's name. But he could tell that Kesar Singh, Indra Singh, Poon Singh etc. of village Atwal reached the spot. The injury on the head was caused by sword from the sharp side. PW 5 Smt. Shambhu Bai is wife of the deceased, who has deposed that some persons came to her house and informed her that her husband is lying on the road near the tree. On hearing that, she sent from the village Shambhu Singh, Gulab Singh, Gul Singh and Thanwar Singh to bring her injured husband. They brought her husband to the village and thereafter Devi Singh took him to the hospital where he succumbed to his injuries. 5. The statement of Thanwar Singh PW 3 shows that he did not know the accused-appellant from before and he saw him at the time of the incident only but the prosecution has not conducted any identification parade to support the dock identification of the accused-appellant. 5. The statement of Thanwar Singh PW 3 shows that he did not know the accused-appellant from before and he saw him at the time of the incident only but the prosecution has not conducted any identification parade to support the dock identification of the accused-appellant. All the eye witnesses examined by the prosecution have stated that although there were number of persons present at the time of the incident, they are not in a position to name them although some of them were of their own village. The written report was lodged on 27.10.1992 at 7. p.m. at Udaipur whereas the incident is alleged to be of 4 p.m. on 26.10.1992. There is no explanation coming forth as to why the report was not immediately lodged. PW 5 Smt. Shambhu Bai wife of the deceased has categorically stated that Thanwar Singh PW 3, Shambhu Singh PW 4 and Gulab. Singh PW 8 were sent from her village tb bring her injured husband to the place of incident after she received an information of her husband lying injured, at her village from the persons, who had returned from the fare. It clearly indicates that Thanwar Singh, Shambhu Singh, Gulab Singh and Gul Singh were not present at the time of the incident but introduced by the prosecution as eye witnesses. The sword recovered from the accused-appellant is not being established to be the weapon used in the commission of the crime. No FSL report is filed by the prosecution to connect the recovered arm with the commission of the crime. On minute scrutiny of the evidence of Thanwar Singh PW 3, Shambhu Singh PW 4 and Gulab Singh PW 8, we do not find them to be trustworthy witnesses and to base the conviction on their testimony. PW 3 Thanwar Singh and PW 8 Gulab Singh have deposed that the fatal injury was caused from the sharp side of the sword whereas Dr. Anis Ahmad PW 15 has said that the injury caused on the head of the deceased was a lacerated wound and further that it could not have been caused by the sword. If the weapon alleged was used from the sharp edged side, the injury caused would have been an incised wound and not a lacerated wound. Anis Ahmad PW 15 has said that the injury caused on the head of the deceased was a lacerated wound and further that it could not have been caused by the sword. If the weapon alleged was used from the sharp edged side, the injury caused would have been an incised wound and not a lacerated wound. The medical evidence does not corroborate the prosecution story that the accused-appellant caused injury to the deceased Kalu Singh with the sword from the sharp edged side. We do not find reliable evidence to convict the accused-appellant for causing death of Kalu Singh. 6. Consequently, the appeal is allowed, the conviction and sentence under section 302 IPC for life imprisonment and a fine of Rs. 200/- and in default, rigorous imprisonment for three months, is set aside. The accused-appellant shall be set at liberty forthwith, if he is not required in any other criminal case.Appeal allowed. *******