JUDGMENT 1. 1. This appeal is directed against the order of conviction recorded by the Sessions Judge, Jalore in Sessions Case No. 40/93 on 29.3.94 by which the appellant was held guilty for causing murder of his 4 years old son and convicting the appellant for offence under section 302 for imprisonment of life and a fine of Rs. 200/-, in default of payment of fine, to undergo simple imprisonment for two months. For offence under section 201 I.RC, the appellant was convicted for five years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine, to undergo one month's simple imprisonment. Both the sentences were ordered to run concurrently. 2. The prosecution story is that a First Information Report (F.I.R.) was lodged in the Police Station on 21.6.93 by one Khangara, father of the accused stating that on 20.6.93 in the evening at about 7, the accused Lasuda carried his son Manchha on his shoulder and was going towards home. Lasuda was in a drunken state and was not able to walk because of drunken condition. In such situation, the son Manchha fell from the shoulder of Lasuda, received injury and died. The F.I.R. was thereafter lodged and the accused was then prosecuted. Eleven witnesses were examined in favour of the prosecution and on appreciation of that evidence, the learned judge came to the conclusion of guilt as aforesaid and sentenced the accused to suffer imprisonment for life. It is this order, which is challenged in this appeal as stated above. 3. With the assistance of the learned counsel for the accused and the learned P.P., we have gone through the case record. We have re-appreciated the evidence and have heard the counsel for both parties. 4. All the 11 witnesses examined in this case are individual witnesses and have turned hostile. The police witnesses have stated what they have seen or done. If the testimony of the hostile witnesses is excluded, the only evidence available on the basis of which the learned Sessions Judge has recorded conviction, is the alleged recovery of an axe but even that evidence, in our opinion, is grossly insufficient. In fact, the order of conviction is wholly unsustainable in the facts and circumstances of the case. Each of the witnesses cited by the prosecution has turned hostile. In fact, the order of conviction is wholly unsustainable in the facts and circumstances of the case. Each of the witnesses cited by the prosecution has turned hostile. In fact, no prosecution for murder under section 302 I.P.C. could be lodge in the present case. In this context, it would be necessary to note the F.LR. as lodged by Khangara s/o Rawata, father of the accused, which reads." eq>s crk;k fd yM+dk 'kjkc ihdj mlds NksVs yM+ds eaNk dks ysdu dgha pyk x;k gS rFkk vHkh rd ?kj ugha vk;k gS ftl ij eSa o esjk yM+dk vtZu ?kj vk;s rc eq>s yNwM+k feyk rc 'kjkc ds u'ks esa Fkk eSaus yNqM+k dks iwNk esjk iksrk eaNk dgkWa gS rc mlus crk;k fd eSa 'kjkc ds u'ks esa Fkk esjk yM+dk eaNk esjs da/ks ij Fkk eSa xkao esa tk jgk FkkA eSa 'kjkc ds u'ks esa gksus ls yM+[kM+k x;k brus esa da/ks ds mij cSBk esjk yM+dk uhps fxj tkus ls pksV yxus ls e`R;q gks x;h rc eSa Mj ds ekjs cPps dks tehu [kksn dj xkM+ fn;k gSA ;g ckr eq>s yNwM+k us crkbZ vr% yNwM+s us esjs ?kj ls esjs iksrs eaNk ftldh mez 4 lky dh gSA ftldks yNwM+k us 'kjkc ihdj u'ks esa engks'k gksdj vius dU/ks ij cSBk;k yNwM+s dh ykijokgh ls eaNk uhps fxj iM+k ftlls mldh pksVsa vkus ls e`R;q gks x;h mldh yk'k dks yNwM+k us dgha ckofy;k esa xkM+ fn;k gSA "From the above F.I.R., it is clear that even according to the complainant the death was caused due to negligence that occurred due to drunken state in which the accused took his son on his shoulders. Even in the F.I.R., there is, therefore, no allegation of any offence being committed by the accused Lasuda. It is on the basis of the F.I.R. that investigation was carried out and when the witnesses appeared in the court/each of them turned hostile. In the result there is no ocular testimony regarding the manner in which death of Manchha occurred. 5. The Investigating Officer has stated in his deposition that the recovery of axe was made from the house belonging to one Poosa Ram, which was a deserted house and was lying vacant and unattended when the recovery was made. The possibility of plantation cannot, therefore, be overruled. In such circumstances, it is very unsafe to record a finding of conviction. The Investigating Officer has stated in his deposition that the recovery of axe was made from the house belonging to one Poosa Ram, which was a deserted house and was lying vacant and unattended when the recovery was made. The possibility of plantation cannot, therefore, be overruled. In such circumstances, it is very unsafe to record a finding of conviction. In our opinion, the learned Sessions Judge, therefore, erred in convicting the accused on such unreliable and scanty evidence. 6. In the result, the appeal succeeds and is allowed, the order of conviction and sentence is set-aside. The accused be set at liberty if not required in any other offence.Appeal Allowed-Conviction Set Aside. *******