JUDGMENT 1. - The present appeal has been filed by the appellant Kalu challenging his conviction under Section 302 I.P.C. and sentence of life imprisonment alongwith fine of Rs. 5,000/- awarded by the learned Sessions Judge, Udaipur in Sessions Case No. 94/98 vide judgment dated 10.08.98. 2. The prosecution case was based on an oral report Ex.P.12 given by P.W.12 Nara on 01.10.97. On receiving the information, P.W.9 Bheru lal, Dy. Superintendent of Police, Police Station Sarada went to the scene of the occurrence. According to the report, at about 12.30 RM., P.W.12 Nara alongwith his brother P.W.14 Ganga proceeded to village Gatod. When they reached Ghantawali Naal, there they met P.W.10 Hakra and P.W.13 Manna. All these persons sat down under a tree and were smoking `beedi. They heard cries of P.W.11 Laxmi. Someone was throwing stones on her. P.W.12 Nara and P.W.13 Manna rushed to the direction where Laxmi was shouting. They saw that one person wearing `dhoti was carrying a bag on his shoulder. After seeing them, he moved towards the hill. They followed him shouting `thief, thief. On hearing the shouts, persons from Guriya village also joined them. On being surrounded by all the persons, the accused was apprehended at the spot. The accused did not inform his name but he said that he is grandson of Doonga Meena. When the bag thrown by the accused was seen, it was soaked in blood and contained a baniyan, yellow coloured bag and turban. There were also two eyes and lower jaw found in that bag. They suspected that the clothes and other belongings may be of deceased Kalu Maharaj. On searching, they found the dead body of Kalu Maharaj covered by a white dhoti. The lower jaw and the eyes were missing. P.W.9 Bheru lal sent the First Information Report Ex.P12 with the Constable Shambhu Singh to the police station and after completion of investigation, a chargesheet was filed in the court of Munsiff and Judicial Magistrate, Udaipur who committed the case to the Session Court, Udaipur where the accused was charged under Section 302 I.P.C. The accused denied the charges and claimed trial. 3. At the trial, the prosecution examined 21 witnesses and exhibited 42 documents. The defence got one document exhibited. 3. At the trial, the prosecution examined 21 witnesses and exhibited 42 documents. The defence got one document exhibited. After the trial, the learned Judge considered the prosecution evidence and found that the defence story is not probable wherein it has been suggested that deceased Kalu died of an attack by some beast in the jungle and has found that death was homicidal. Then, the learned Judge proceeded to consider the evidence of other witnesses. Most of the prosecution witnesses have turned hostile. So much so, that the sons of the deceased P.W.3 Limba and P.W.4 Doonga and turned hostile. The learned trial judge has brushed aside the hostile character by saying that they were not the witnesses of the occurrence and were only witnesses of the identification of the dead body. Therefore, their turning hostile is immaterial to the prosecution case. 4. Learned trial Judge has then considered the implication of turning hostile of the other prosecution witnesses P.W.12 Nara, P.W.10 Hakra and P.W.13 Manna. The learned Judge has observed that these witnesses have turned hostile and there were contradictions in their testimony. However, the learned Judge has found that it cannot be said that by their turning hostile, the whole story of the prosecution turtles. The learned Judge has considered that these witnesses having deposed of the presence of P.W.11 Laxmi. On the contrary what has been deposed is that the lady who shouted was Kesi, as has been stated by P.W.12 Nara in his examination-in-chief. However, this witness in his cross-examination has deposed that the lady was Laxmi. P.W.13 Manna has stated that when he went there, he saw the accused stoning the dead body but such fact is contrary to the testimony of other witnesses and the First Information Report. The learned Judge has observed that although there have been contradictions in the statement of the eye-witness, still he has found that according to the witnesses P.W.10 Hakra, P.W.11 Laxmi, P.W.12 Nara and P.W.13 Manna this fact stands established that the accused was there. He tried to make his escape good and then he was apprehended P.W.10 Hakra though has turned hostile but he also says that the accused was apprehended from behind the bushes. He has denied the fact that he had seen the occurrence but such was not the prosecution story. He tried to make his escape good and then he was apprehended P.W.10 Hakra though has turned hostile but he also says that the accused was apprehended from behind the bushes. He has denied the fact that he had seen the occurrence but such was not the prosecution story. The learned Judge has further observed that P.W.13 Manna though has turned hostile but he has stated that from the bag thrown by the accused, eyes and lower jaws were recovered. The learned trial Judge has further observed that P.W.11 Laxmi has stated that she has seen the accused taking out the eyes of the deceased and then the accused had thrown stones on her. This witness has further stated that by the side of the dead body the bag of her uncle-in-law was lying. The learned Judge has also found that the accused was apprehended by the villagers from the spot. There is no enmity in between those who have held him and, therefore, there was no reason as to why he should have been falsely implicated. 5. The learned Judge has discussed the implication of the variance in between the evidence of other witnesses and P.W.12 Nara wherein the position of the bag containing the eyes and the lower jaw has been described. According to P.W.12 the bag was with the accused, whereas in evidence it has been stated that the bag was lying near the dead body. But this variance has been explained by the learned trial Judge by saying that Laxmi has herself seen the accused plucking the eyes. The learned Judge has found that there was no enmity but the question of motive becomes redundant when there is a eye-witness and, thus, the learned Judge found the case to be proved. 6. Mr. Pradeep Shah, appearing for the accused, has urged that learned trial judge was wrong in convicting the accused-appellant. The evidence of P.W.11 Laxmi has been relied upon by the trial Judge to convict the accused seeking corroboration from the other hostile witnesses. P.W.11 Laxmi is the solitary alleged eye-witness. She in her statement has stated that while she was going from Guriya village to Jaisamand, in the hills a man was sitting. He was taking out the eyes of her deceased uncle-in-law. When she saw him, he started throwing stones at her and chased her. P.W.11 Laxmi is the solitary alleged eye-witness. She in her statement has stated that while she was going from Guriya village to Jaisamand, in the hills a man was sitting. He was taking out the eyes of her deceased uncle-in-law. When she saw him, he started throwing stones at her and chased her. On shouting and making noise, witnesses P.W.10 Hakra, P.W.12 Nara, P.W.13 Manna and P.W.14 Gaanga, who were smoking near the tree came. Then, these witnesses came there and she left for her house. The witnesses in the village might have held the accused. Thereafter, she pleads ignorance because she states that thereafter she went home. She states that the bag was lying near the dead body. She says in cross examination that she has seen the accused taking out eyes and lower jaw. But then, she admits that she had stated to P.W.12 Nara that Kalu Maharaj has been held by a thief and she had not informed Limba and Doonga, sons of the deceased anything. She had gone home from the scene of the occurrence and no person was informed by her in the village. Even she did not inform about the incident to those who met her in the way. She has stated that she has spoken in her police statement that she has seen the accused taking out the eyes and lower jaw but such fact is not available in her police statement Ex. D/1. 7. The learned counsel for the accused has criticized the statement of this witness by saying that she has deposed two eyewitnesses by stating that she has seen the accused plucking eyes and lower jaw but such was not the statement made to the police. In her examination-in-chief, this is the only part she claims to have seen being played by the accused otherwise, according to this witness Kalu Maharaj was already dead. It was his dead body near which the accused was sitting. If Kalu Maharaj was already dead and she only saw plucking eye and lower jaw and this part played by the accused have not been stated by her in police statement, then she is obviously making an improvement from her previous statement and such improvement cannot lend assurance to the mind of the court. Apart from this, she has not claimed that she has seen the actual killing. Apart from this, she has not claimed that she has seen the actual killing. Thus, saying that she is an eye-witness is a tall claim made by the prosecution. She could have been a witness of aftermath but whatever she has started in the court was not supported by her previous statement. Further, she is an un-natural witness. She claims that she has not stated anything to the sons of the deceased while going home. She also states that she has not informed anybody in the village. Thus, she is an un-natural witness. Apart from being a chance relative witness who has not been able to establish that she was present there, her presence on the scene of occurrence is even falsified by the statement of other witnesses. P.W.12 Nara in his statement says that the lady whom he saw was Kesi. Though, in his other part of the statement, he has stated that he saw Laxmi but then, if two things are said, one excludes. It cannot be said that her presence is established. According to the learned counsel, she is not an eye-witness and also not a witness on whose statement conviction can be based. She is not giving the true eye-witness account. Her best evidence relates to only the part of the event i.e. plucking of eyes and lower jaws and that part too is not in her statement given to the police. Thus, she is an infirm witness. Her statement has been sought to be corroborated by the testimony of P.W.10 Hakra, P.W.12 Nara and P.W.13 Manna and they are hostile witnesses. The testimony of hostile witnesses is not necessarily required to be discarded in its entirety. But if they are supporting the substratum of the prosecution story, the case setup by them cannot be said to be of any consequence to the prosecution. The only factor which can be said to be established by the evidence of these witnesses is that they had seen the accused there. But mere seeing of the accused there is of no consequence. Here, motive resumes importance. No motive has been alleged by the prosecution. There was no reason as to why the deceased would be killed by the accused and, therefore, no implicit reliance can be placed on the prosecution case and the case of the prosecution deserves to be discarded in its entirety. 8. Here, motive resumes importance. No motive has been alleged by the prosecution. There was no reason as to why the deceased would be killed by the accused and, therefore, no implicit reliance can be placed on the prosecution case and the case of the prosecution deserves to be discarded in its entirety. 8. Per contra, the learned Public Prosecutor has stated that the prosecution case has been established by the reliable evidence. The witnesses have stated that the accused was found there and thus it can aid the evidence of P.W.11 Laxmi and the conviction has been rightly maintained. 9. We have considered the rival submissions and given our thoughtful consideration. We have also perused the evidence on record. 10. There has been no challenge to the question whether the deceased Kalu Maharaj had died a homicidal death or not therefore, the prosecution case to that extent as believed by the trial court is not touched and the fact that the trial court has held that the deceased died a homicidal death is found established. Now, comes the question of culpability of the accused. The case rests on the testimony of eye-witness P.W.11 Laxmi. P.W.11 Laxmi in her evidence in court has claimed that while she saw the accused, the accused was taking out eyes and jaw of the dead body which was of her uncle-in-law. This part, she had not stated to the police and is missing from D/1. This statement is obviously an improvement from her first version. This version thus deserves to be excluded from consideration. When the part alleged to have been played by the accused i.e. plucking of eyes and lower jaw is excluded from consideration then the statement of P.W.11 Laxmi remains to the fact that the accused threw stones on her and she shouted and the dead body was lying behind. Merely, by throwing stones, it cannot be said that the accused has committed the crime. The only thing which stands established is that the accused was seen near the dead body. This fact will have to be judged in the light of other evidences. The other witnesses of the prosecution have turned hostile. None of the witnesses have supported P.W.11 Laxmi except on the count when she says that she saw the accused there. P.W.11 Laxmi has even said that she has seen detention of the accused by the witnesses. This fact will have to be judged in the light of other evidences. The other witnesses of the prosecution have turned hostile. None of the witnesses have supported P.W.11 Laxmi except on the count when she says that she saw the accused there. P.W.11 Laxmi has even said that she has seen detention of the accused by the witnesses. The detention is a subsequent act. Thus, P.W.11 Laxmi gets excluded from the fact that she has seen the detention of the accused by the villagers. The detention has not been made near the dead body. According to P.W.11, the accused has already left the company of the dead body and was after her. Thus, the other witnesses could not say that she has seen the accused running away and thereafter, apprehended him. Merely running and subsequent detention brings no culpable factor which can unhesitatingly establish that the accused had killed the deceased. There is no circumstantial evidence available on record. There are no recoveries at the instance of the accused which can connect the accused to the deceased. The bag from which the eyes and jaws has been recovered was lying near the dead body as admitted by the prosecution witnesses. No blood has been identified from the person of the accused. No weapon of offence has been recovered which connects the accused with the dead body. There is hardly any evidence available on record. We find that the evidence of P.W.11 Laxmi is not to the effect that she has seen the accused causing injuries to the deceased. It is, further found that the only part she has alleged to have seen being played by the accused was not deposed by her in her police statement. Therefore, it is not believable. She has not seen the apprehension of the accused by the villagers and the accused had also left the company of the dead body and then on her cries, the villagers were attached including P.W.10 Hakra, P.W.12 Nara, P.W.13 Manna and P.W.14 Gaanga. Thus, these witnesses could not have seen the accused killing of the deceased. His subsequent detention is of no consequence. If there is no evidence available on record to connect the accused with the dead body, the description of the prosecution case shows that there is no direct or circumstantial evidence available to connect the accused with the deceased. Thus, these witnesses could not have seen the accused killing of the deceased. His subsequent detention is of no consequence. If there is no evidence available on record to connect the accused with the dead body, the description of the prosecution case shows that there is no direct or circumstantial evidence available to connect the accused with the deceased. Thus, we find it difficult to sustain the conviction recorded by the learned trial judge. 11. Consequently, the conviction recorded by the learned Sessions Judge, Udaipur against the accused person is set aside. The sentence awarded is also set aside. The accused is acquitted of the charge levelled against him under Section 302 I.PC. The accused is behind the bars. He be released forthwith if not required in any other case.Appeal allowed. *******