JUDGMENT 1. - Challenge in this appeal is to the judgment dated December 19, 2002 of the learned Additional Sessions Judge (Fast Track) Ajmer whereby Mohammad Ishaq, the appellant herein has been convicted and sentenced under section 302 IPC to undergo imprisonment for life and fine As. 3,000/- in default to further suffer three months simple imprisonment. 2. As per prosecution story, informant Riyajuddin (Pw.1) on January 8, 2000 submitted a written report at Police Station Gegal Ajmer with the averments that on the said day around 2 PM his uncle Allauddin proceeded from village Unteda to Gagwana. Thereafter at about 3 PM while the informant, Shafi Mohammad, Abdul Hamid and Nasruddin were passing near the house of Ishaq (appellant) they heard cries. They rushed to the house of Ishaq and saw Ishaq, Mubarak, Ayub, Murad and Ayesha lifting Allauddin and pushing him outside the house. Allauddin had injuries on the head, hands and feet and blood was oozing from the body. Allauddin was removed to the hospital in a jeep. On the way Allauddin informed that he was beaten by those persons and a sum of As. 35,000/- was taken by them. After some time Allauddin died. On that report a case under section 302 IPC was registered and investigation commenced, appellant was arrested, necessary memos were drawn- and on completion of investigation charge-sheet was filed against appellant and his wife Ayesha Begum. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Ajmer. Charges under sections 302 and 302/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Section 313 Cr.RC., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions acquitted Ayesha Begum, but convicted and sentenced the appellant as indicated herein above. 3. We have heard the contentions raised before us and with the assistance of learned Amicus Curiae perused the record. 4. Death of Allauddin was concededly homicidal in nature. As per postmortem report (Ex.P-23) following ante mortem injuries were found on the dead body: 1. Contused swelling on the (R) arm with arm bone middle. 2. Contused swelling on (R) thigh with (R) thigh. 3. Abrasion on (R) mandible 2 x 1 cm. 4. Death of Allauddin was concededly homicidal in nature. As per postmortem report (Ex.P-23) following ante mortem injuries were found on the dead body: 1. Contused swelling on the (R) arm with arm bone middle. 2. Contused swelling on (R) thigh with (R) thigh. 3. Abrasion on (R) mandible 2 x 1 cm. (L) cheek 4 x 2 x eye blow 2 x 1 on nose. 4. Illused wound on the (R) side of forehead 3 cm. x 1 cm. bone deep. Obliquely placed clean cut margin, clotted blood. 5. lllused wound on the (R) temporal region 2 cm. x 1 cm. bone deep. 6. Contusion on (L) fronto temporal region 6 x 4 cm. 7. Contusion on (L) side of chest 7 cm. x 3 cm. lower part. 8. Illused wound on the back of (R) ear 3 cm. x 2 cm. cartilage deep, (R) ear lobule is missing. 9. Lacerated wound on the (R) parietal region posteriorly 3 cm. x 1 cm. bone deep. 5 cm. x 1 cm. bone deep 6 cm. x 1 cm. bone deep one after another. 10. Lacerated wound on the occipital region 4 cm. x 2 cm., 3 cm. x 2 cm., 4 cm. x 1 cm., 3 x 1 cm. all bone deep. The cause of death was coma as a result of head Injury No. 9. 5. The prosecution case is primarily founded on the testimony of informant Riyazuddin (Pw. 1), Nasruddin (Pw. 2) and Abdul Hamid (Pw.3). In his deposition Riyazuddin stated that he along with Shafi Mohammad, Nasruddin and Abdul Hamid had gone to read Fatia in a Mazar. While they were passing near the house of appellant they heard cries. So they rushed towards the house and found Ishaq, Mohd. Ayub, Mubarak, Murad and Ayesha lifting Allauddin (deceased) and pushing him outside. At that time blood was oozing from his head and there were injuries on hands, feet and head. Allauddin was removed to Ajmer hospital in a jeep. On the way Allauddin informed that he was beaten up by appellant Ayesha, Murad, Ayub and Mubarak with lathi and axe and snatched a sum of Rs. 35,000/- from him. Allauddin died in hospital. In the cross examination Riyazuddin however stated that at the time when Allauddin was taken to hospital he was unconscious. On the way Allauddin informed that he was beaten up by appellant Ayesha, Murad, Ayub and Mubarak with lathi and axe and snatched a sum of Rs. 35,000/- from him. Allauddin died in hospital. In the cross examination Riyazuddin however stated that at the time when Allauddin was taken to hospital he was unconscious. He also admitted that he did not narrate the incident to doctor, who admitted Allauddin. He further admitted that the village Unteda was at a distance of 7-8 kilometers from the place of incident. Nasruddin (Pw.2) and Abdul Hamid (Pw.3) are also inhabitants of village Unteda. Testimony of Riyazuddin gets corroboration from the statements of Nasruddin and Abdul Hamid. 6. It is contended by learned Amicus Curiae that Riyazuddin, Nasruddin and Abdul Hamid are near relatives of the deceased. They are chance witnesses and their presence at the time of incident is doubtful and no reliance could be placed on such evidence. 7. It is further urged that the recovery of iron-rod, stones and blood stained clothes at the instance of appellant is doubtful. Although on these articles human blood was found but it could not be established as to whether it was the blood group of the deceased. Learned counsel criticized the following finding of learned trial Judge: " uD'kk ekSdk izn'kZ ih&4 ls ;g lkfcr gS fd ekuo [kwu ik;k x;k gS] og ?kVukLFky vfHk;qDr dk ?kj gS ,slh fLFkfr esa ;g ftEesnkjh vfHk;qDr dh Fkh fd og crkrk fd ogka ij [kwu dSls feyk mlus bl ckr dks Li"V ugha fd;k gSA vr% ekuo [kwu feyus ls ;gka tkosxk fd ogka ij ekjihV gqbZ gS rFkk ;g ekjihV vfHk;qDr }kjk vykmn~nhu e`rd ds lkFk dh xbZ gSA " Learned counsel further canvassed that the prosecution has failed to explain as to why co-accused named in the FIR viz. Murad, Mubarak and Ayub were not charge sheeted. It is further contended that case of co-accused Ayesha Begum, who stood acquitted, was not distinguishable with that of the case of appellant, but the appellant has been convicted on the basis of the evidence which was not relied on qua Ayesha Begum. Per contra, learned Public Prosecutor supported impugned judgment and urged that the appellant was rightly convicted and sentenced. 8. Per contra, learned Public Prosecutor supported impugned judgment and urged that the appellant was rightly convicted and sentenced. 8. Having closely scanned the testimony of witnesses we notice that the witnesses have not explained as to why they came 7-8 kilometers away from their village to read Fatia. It also appears that all the three witnesses are close relatives of the deceased. 9. In Ismail v. Momin, AIR 1941 Privy Council 11 it was held that though the chance witness is not necessarily a false witness, is proverbially rash to act upon such evidence. In the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted. In Baldev Singh v. State of MP, 2003 (1) WLC (SC) Cri. 298 : (2003) 9 SCC 45 , the Apex Court, where chance witness failed to assign any convincing reason for being at the place of incident at that abnormal hour of the day in full summer, held that testimony of such witnesses could not be relied upon. 10. The expression 'chance witness' is borrowed from the countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. In the instant case Riyazuddin, Nasruddin and Abdul Hamid have failed to assign any convincing reason for being near the house of appellant which was 7-8 kilometers away from their village at 3 PM on January 8, 2000. On a close scrutiny of their evidence, we find them unreliable. Their presence at the time of incident appears highly doubtful. The prosecution also could not explain as to why similarly situated co-accused Ayub, Murad and Mubarak were not charge sheeted and why only appellant and his wife were picked by the Investigating Officer. As already noticed learned trial court shifted burden of proof on appellant to prove his innocence. The observation of learned trial Judge is contrary to the Criminal Jurisprudence. The evidence which has not been relied upon by the learned trial court qua Ayesha Begum, we fail to understand why on the same set of evidence, the appellant was convicted. In our considered opinion, the prosecution could not able to establish the charge under section 302 IPC against the appellant beyond reasonable doubts. 11. The evidence which has not been relied upon by the learned trial court qua Ayesha Begum, we fail to understand why on the same set of evidence, the appellant was convicted. In our considered opinion, the prosecution could not able to establish the charge under section 302 IPC against the appellant beyond reasonable doubts. 11. For these reasons, we allow the appeal and set aside the impugned judgment dated December 19, 2002 of the learned Additional Sessions Judge (Fast Track) Ajmer. We acquit the appellant of the charge under section 302 IPC. The appellant Mohammad Ishaq, who is in jail, shall be set at liberty forthwith, if not required to be uetained in any other case.Appeal Allowed. *******