JUDGMENT 1. - This is an appeal against the judgment dated 9.2.1993, passed by learned Sessions Judge, Jhalawar, whereby he convicted Kanhaiyalal, under Section 307 and 201 IPC and sentenced him to rigorous imprisonment for two and half years and a fine of Rs. 500/-, under the first count and six months R.l. and a fine of Rs. 100/- under the second count. 2. The allegations against the appellant were that he had attempted to administer poison to his brother Birdhi Lal on 1.6.1989 at 9 a.m. when the later was taking his food. The prosecution case was that Birdhi Lal seeing its colour, did not eat the vegetable in which the poison was mixed, and when he asked the accused about it, he immediately threw away the contents of the bowl. 3. Charges under Sections 307 and 201 IPC had been framed against the accused, who pleaded not guilty. Prosecution examined RW. 1 Devi Shanker, RW. 2 Raj pal Singh, PW. 3 Udai Lal, PW. 4 Bairdhi Lal, RW. 5 Bheru Singh, RW. 6 Gopal Singh, RW. 7 Mangi Lal, RW. 8 Kani Bai and RW. 9 Jamna Lal. The accused in his statement under Section 313 Cr.RC. denied accusation. 4. During the trial of the case, Birdhi Lal had filed an application on 29.1.1993, stating that he had lodged the report against the accused in doubt and he wanted to compound the offence. However, since the offences were not compoundable, his application was not accepted. Ultimately, the trial Judge held that the accused had mixed poison in the vegetable of Birdhi Lal and when he was confronted with the situation, he immediately threw away the vegetable lying in the bowl. He, therefore, convicted and sentenced him as stated above. 5. Mr. Rajawat, learned counsel for the appellant contended that the trial court has committed grave error in convicting the accused in this case. Pointing out that the relations of the accused an Birdhi Lal were very condial he argued that there could not be any cause for the accused to have thought of killing his real brother. 5. Mr. Rajawat, learned counsel for the appellant contended that the trial court has committed grave error in convicting the accused in this case. Pointing out that the relations of the accused an Birdhi Lal were very condial he argued that there could not be any cause for the accused to have thought of killing his real brother. He also pointed out that in his statement Ex.D. 1 recorded under Section 161 Cr.RC., Birdhi Lal had not stated that he had seen the accused putting something in the vegetable and submitted that this part of the statement of Birdhi Lal should not be believed that he had seen the accused dropping something in the vegetable lying the bowl. He also pointed out the discrepancies appearing in the statements of the witnesses. As to the report of F.S.L. his contention was that it is possible that some thing might have failed in the vegetable when the plate was lying unattended or the Zink Phosphate could be there on the floor from where Birdhi Lal had collected the vegetable. He also submitted that it has not come in evidence that Birdhi Lal had eaten some part of the vegetable before the alleged incident and, therefore, the possibility that the container in which the vegetable was cooked or kept, might have come in the contact of Zink Phosphate accidently. In this connection, he pointed out that the remaining vegetable had also been taken in possession by the police but the report in respect of the same has not been produced. 6. Learned Public Prosecutor, however, tried to support the judgment of the trial Court. 7. Birdhi Lal deposes in categorical terms that prior to this occurrence, there was love and affection between him and the accused. Kani Bai, RW. 8, wife of Birdhi Lal also says that the relations between her husband and accused were good, and there was no quarrel between them. Therefore, there could not be any cause for the accused to have thought of poisoning his real elder brother. Thus the motive is absent in the case. 8. Birdhi Lal, P.W. 4 says that when he was searching the electricity bill, suddenly he turned his neck back side and he saw that the accused was cleaning his hands after putting something in the bowl in which vegetable was lying. Thus the motive is absent in the case. 8. Birdhi Lal, P.W. 4 says that when he was searching the electricity bill, suddenly he turned his neck back side and he saw that the accused was cleaning his hands after putting something in the bowl in which vegetable was lying. The statement clearly indicates that Birdhi Lal had not seen the accused dropping some thing in the vegetable and he had seen the accused rubbing his hands with the trouser only. The possibility that the accused was rubbing his hands with the trouser accidently without any reason, cannot be ruled out. It is significant to point out that in his statement under Section 161 Cr.PC. Birdhi Lal had not stated that he had seen the accused putting something in the bowl of vegetable. As already stated, the relations of two brothers were very cordial and, therefore, there was no possibility that the accused would have thought of administering poison to Birdhi Lal. 9. It has come in the statement of Birdhi Lal that suspecting the blue colour of the vegetable, he called Mangilal and Jamna Lal and at that time the accused remained standing near the gate having electric bill in his hand. He then says that Jamna Lal lifted the bowl and at that time the accused came and snatched the bowl from his hand. Had the accused committed the offence, the normal behaviour Would have been that he ran away. Even knowing that Birdhi Lal was calling Jamna Lal and Mangilal, yet the accused kept on standing. It goes to show that he had not committed any offence and he was innocent. 10. About the circumstance that the accused had thrown away the vegetable from the bowl, it may be stated that Jamna Lal no where says that he had lifted the bowl in his hand and the accused had snatched the same, which fact is stated by Birdhi Lal. What Jamna Lal says is that as he was seeing the vegetable, the accused dropped the vegetable from the bowl. It is significant to point out that Birdhi Lal does not' say that the accused had thrown away the vegetable from the bowl. What he says is that when conversation was going on, between him and the accused, some vegetable fell down and some remained in the bowl. It is significant to point out that Birdhi Lal does not' say that the accused had thrown away the vegetable from the bowl. What he says is that when conversation was going on, between him and the accused, some vegetable fell down and some remained in the bowl. Thus this part of the statement of Jamna Lal that the accused had thrown away the vegetable in order wipe out the evidence is obviously incorrect. 11. The prosecution version is that at the time the accused went to the house of Birdhi Lal, the later was taking his food and the accused asked him to give the electric bill to him. The accused could not anticipate that on his request for the electric bill, Birdhi Lal would take away the plate of food with him and he would get an opportunity of mixing the poison. The matter would have been different, if the accused had sent Birdhi Laid down stairs and the allegations would have been that he had administered the poison in unattended food. But this is not the case. 12. Mangilal, RW. 7 was the Sarpanch, at the relevant time. He says that both the brothers were quarrelling and on his asking, the accused denied to have put any thing in the vegetable. He further says that the vegetable was lying on the ground. Birdhi Lal says that he had collected the vegetable lying on the floor and had put the same in the bowl, which was handed over to the police at the police station. The possibility that something was there on the floor, which got mixed in the vegetable, can not be altogether ruled out. 13. It is significant to point that according to Jamna Lal RW. 9, the police had also lifted the vegetable lying on the ground. Bheru Singh says that he had gone to the place of occurrence and had prepared the site inspection memo, but no F.S.L. report has been filed in respect of the same. 14. It is relevant to point out that RW. 4 no where says that he had eaten some vegetable before the incident. What he says is that he was taking his food and there was one and half 'Roti' in his plate. That does not mean that the witness had eaten the vegetable before the alleged incident. 14. It is relevant to point out that RW. 4 no where says that he had eaten some vegetable before the incident. What he says is that he was taking his food and there was one and half 'Roti' in his plate. That does not mean that the witness had eaten the vegetable before the alleged incident. Kani Bai also does not say that her husband had eaten some vegetable before going with his brother. In these circumstances, the possibility that Zink Phosphate got mixed in the vegetable even before the accused reached the house of Birdhi Lal, can not be ruled out. The I.O. does not seem to have taken sample from the remaining vegetable. 15. As already stated even Birdhi Lal had moved an application before the trial court that he had made allegations against his brother on suspicion. Keeping in view the entire facts and circumstances on record, it has to be accepted that the case is not free from doubt. The accused is entitled to the benefit thereof. 16. Consequently, the appeal succeeds. The conviction and sentence of the appellant are set-aside and he is acquitted of the charges under Section 307 and 201 IPC. He is on bail. He shall not surrender to the bail bonds, which stands cancelled.Appeal allowed. *******