JUDGMENT 1. 1. This appeal is directed against the judgment and order dated Oct. 15, 1996 passed by learned Sessions Judge, Sawaimadhopur whereby he convicted the accused-appellant Babu under section 302 IPC and sentenced to life imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo two months' simple imprisonment. 2. Briefly stated the facts of the prosecution case are that on June 8, 1996 a written report Ex.P3 was made by Nanag Ram PW 4 son of Girraj, Ex-Sarpanch resident of Soorwal to ASI Mr. Alam Singh, Incharge Police Station Mantown (Sawaimadhopur) with the averments that Shiv Shankar Ex-Sarpanch had informed him that dead-body of a male was lying in his well. On receiving this information he informed the police on telephone. On the basis of this written report Ex P3 proceedings under section 174 Cr.PC. were taken up by the police. Thereafter, the dead body was taken out of the well and inquest report Ex.P2 was prepared by PW9 Alam Singh, ASI. The dead body was identified as that of Suresh son of Moharpal by caste Meena resident of Soorwal Police Station Mantown. Site-plan Ex.P4 was also prepared. Autopsy on the dead body was conducted by PW 1 Dr.PC. Gupta on June 9, 1996 and he prepared post-mortem report Ex.P1. Dr. Gupta could not ascertain the cause of death. Statements of witnesses were recorded and it was found that it was a case of murder and therefore, PW9,Alam Singh submitted enquiry report Ex.P7 to SHO Police Station Mantown. On the basis of this report a case was registered under section 302 IPC and investigation commenced. The appellant was arrested on June 13, 1996 vide arrest memo Ex.P9 and on his disclosure statement Ex.P10 recorded under section 27 of the Evidence Act while the appellant was in police custody and at his instance 'dhoti, kurta, and angocha' allegedly belonging to the deceased were recovered from the house of the appellant vide recovery memo Ex.P1 1 by the investigation officer. These clothes were sealed. The witnesses were examined under section 161 Cr.PC. As stated by the prosecution the aforesaid clothes were identified by Smt. Rukrnani wife of the deceased in identification proceedings conducted by Executive Magistrate, Sawai Madhopur. These clothes were sealed. The witnesses were examined under section 161 Cr.PC. As stated by the prosecution the aforesaid clothes were identified by Smt. Rukrnani wife of the deceased in identification proceedings conducted by Executive Magistrate, Sawai Madhopur. On completion of investigation a chargesheet was laid against the appellant in the court of Chief Judicial Magistrate, Sawaimadhopur, who committed the case to the court of learned Sessions Judge. 3. Learned Sessions Judge framed charge under section 302 IPC against the appellant who pleaded not guilty and claimed trial. 4. The prosecution examined as many as 12 witnesses. In his statement recorded under section 313 Cr.PC. the appellant pleaded innocence and stated that he has been falsely implicated by the residents of his village. In defence DW 1 Guddu was examined. 5. Learned Sessions Judge after hearing the final submissions convicted and sentenced the accused-appellant as indicated hereinabove. 6. We have heard learned Amicus Curiae for the appellant, learned Public Prosecutor and have also scanned and scrutinised the material on record. 7. PW1 Dr.PC. Gupta stated that on June 9, 1996 as Medical Jurist, General Hospital, Sawaimadhopur he conducted the post-mortem examination on the dead body of Suresh son of Moharpal Meena resident of Soorwal and prepared the post-mortem report Ex.P1. No injury was found on the dead body. The dead-body was in highly decomposed condition. Dr. Gupta also stated that he could not ascertain the cause of death. In view of the statement of Dr. Gupta we are of the opinion that the prosecution has failed to prove beyond reasonable doubt that the deceased Suresh met with the homicidal death and possibility of suicide or accidental death by falling into the well cannot be ruled out. 8. The appellant is the real brother of the deceased. PW 8 Kamal has stated that on June 4, 1996 at about 6.311 PM he alongwith Kalu, Mansa, Suresh and Babulal look liquor at the house of the appellant Babu. Thereafter. at about 11.00 PM he along with The deceased Suresh and Babu left for village Gothda. On the way scuffle took place between the deceased and the appellant. The appellant Babu said to the deceased that when he was in jail he {the deceased) had harassed his children and therefore he would kill him today Suresh fell down on the ground. On the way scuffle took place between the deceased and the appellant. The appellant Babu said to the deceased that when he was in jail he {the deceased) had harassed his children and therefore he would kill him today Suresh fell down on the ground. PW8 Kamal further stated when he was about to return, the appellant Babu threatened him. that if he returned then before killing Suresh he would kill him. Because of this threatening he did not return and remained there. Thereafter the appellant fitted Suresh and took him at the well. He removed his clothes and threw him at the well. Kamal has also stated that the appellant told him "if he informs anybody about this incident then he will not leave him alive." The appellant lock clothes of the deceased with him. Thereafter both he and the appellant came back at the house of the appellant. He has also stated in his cross- examination that when the appellant was throwing Suresh into the well he did not stop him. It has been further stated by him that he did not inform the police about the incident before 31th June 1996 whereas on 9th June 1996 he came to know that the dead-body of Suresh was found in a well. PW8 Kamal was examined by the Investigating Officer under section 161 Cr.PC: on 13.6.1996 after 2-3 days of the recovery of the dead body. 9. In our considered opinion the testimony of PW 8 Kamal is not trustworthy and it does not inspire confidence. PW2 Nangya has stated that at about 10-11 PM he was in his `bada'. He heard noise from the 'bada' of appellant Babu. Thereafter he saw both Babu and Suresh going together towards Village Gothda. They were abusing each other. Nangya has further stated that after 2-3 days the dead- body of Suresh was found in the well of Sarpanch. As per the statement of PW2 Nangya in examination-in-chief PW8 Kamal was not going with the appellant and the deceased and therefore, in our view the testimony of both PW 2 Nangya and PW2 Kamal is not reliable and they are untrustworthy witnesses. In his cross-examination PW8 Kamal has also stated that when the deceased and the appellant were quarreling he did not intervene. He has further stated that he did not inform anybody in the village about the incident. In his cross-examination PW8 Kamal has also stated that when the deceased and the appellant were quarreling he did not intervene. He has further stated that he did not inform anybody in the village about the incident. He did not go to the house of the deceased to inform his wife about it. He has admitted in his cross examination that when he and the appellant came back at the house of the appellant Mansa and Kalu were sleeping there but he also did not tell them about the incident. It is also not believable that before throwing Suresh into the well the appellant had removed clothes from his body. Clothes were not a valuable property. Looking to these facts and unnatural conduct of PW8 Kamal no reliance can be placed on his testimony. 10. It was also alleged by the prosecution that on the disclosure statement Ex.P10 of the appellant clothes of the deceased were recovered from the house of the appellant. We have given our thoughtful consideration to the evidence adduced by the prosecution regarding alleged recovery of the clothes. Both the motbirs Brijmohan and Dhanpal in whose presence the clothes were allegedly recovered have not been produced by the prosecution in its evidence. Apart form that, clothes were not produced before the trial court. As stated above it is not believable that before throwing the deceased into the well the appellant had removed the clothes from the person of the deceased. Therefore, the prosecution has utterly failed to prove the recovery of the clothes. PW5 Smt. Rukmani who is the wife of the deceased has stated in her cross-examination that in the identification proceedings no other clothes were there with the clothes allegedly belonging to the deceased. Therefore, the evidence of the prosecution regarding identification of the clothes is worthless. 11. The prosecution has also not proved the motive of the appellant to commit murder of his own brother Suresh. In her statement PW5 Rukmani has not stated that there was enmity between her husband and the appellant prior, to the alleged incident or they were not having cordial relations. 11. The prosecution has also not proved the motive of the appellant to commit murder of his own brother Suresh. In her statement PW5 Rukmani has not stated that there was enmity between her husband and the appellant prior, to the alleged incident or they were not having cordial relations. For the aforesaid reasons we have come to the conclusion that the direct as well as circumstantial evidence adduced by the prosecution is not trustworthy and the prosecution has failed to prove the charge framed against the appellant and therefore, he is entitled to be acquitted of the charge. 12. Consequently the appeal of the appellant-Babuiai is allowed. While setting-aside the judgment dated Oct. 15, 1996 passed by learned Sessions Judge, Sawaimadhopur in Sessions Case No. 44/96 the appellant-Babulai` is acquitted of the charge under section 302 IF C. He is in judicial custody. He shall be released forthwith if not required in any other case.Appeal Allowed - Conviction set aside. *******