JUDGMENT 1. - Since both the appeals relate to the incident occurred on October 23, 1991 we proceed to decide them by a common judgment. Challenge is made to the judgment dated December 7,2000 of the Additional Sessions Judge Jhalawar in Appeal No.397/2001, whereas judgment dated May 30, 2001 by Additional Sessions Judge, Jhalawar has been assailed in Appeal No.383/2001, whereby appellants Zakir Hussain and Liyakat Ali have been convicted and sentenced under Section 302 Indian Penal Code to suffer imprisonment for life and fine with default stipulation. 2. As per the prosecution story the informant Abdul Sattar (PW.5) on hearing that dead body of Ramjani was found in the field of Gafoor, rushed to the police station and submitted a written report on October 23,1991. Although Abdul Sattar did not see the incident, yet he named Zakir, Liyakat, Mustafa, Mohammad Usman and Raza Hussain as the killers of Ramjani. On that report a case under Sections 147, 148, 149 and 302 Indian Penal Code was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Jhalawar. Charges under Sections 147, 120B and 302/149 Indian Penal Code were framed against the accused who denied the charges and claimed trial. Since Liyakat Ali absconded, the trial proceeded only against remaining accused and out of them only Zakir Hussain was ultimately convicted and sentenced. Thereafter in a separate trial Liyakat Ali was also found guilty as indicated herein above. 3. We have given our anxious consideration to the rival submissions and with the assistance of learned counsel we have gone through the evidence on record. 4. Death of Ramjani was indisputably homicidal in nature. As per post mortem report (Ex.P27) he received following ante mortem injuries:- 1. Incised wound 3cm x 1/2cm x 1/2cm oblique on right hand between base of thumb and index finger clotted blood present simple sharp. 2. Incised wound left index finger outer aspect base 2cm x 1/2cm x 1/2cm oblique clotted blood simple sharp. 3. Double line parallel contusion 20cm x 1cm x gap of 1cm vertical 5cm from umbilicus from left hypochondrium to suprapubic region simple blunt. 4. Double line parallel contusion 10cm x 1cm x gap of 1cm transversally oblique left Hypochondrium simple blunt. 5. 3. Double line parallel contusion 20cm x 1cm x gap of 1cm vertical 5cm from umbilicus from left hypochondrium to suprapubic region simple blunt. 4. Double line parallel contusion 10cm x 1cm x gap of 1cm transversally oblique left Hypochondrium simple blunt. 5. Double line parallel contusion 8cm x 1cm x gap of 1cm curved transversally outer aspect right elbow simple blunt. 6. Swelling right forearm whole simple blunt. 7. Swelling back right wrist simple blunt. 8. Incised wound 5cm x 2cm x bone deep oblique left knee outer aspect downward knee joint exposed simple sharp. 9. Incised wound 5cm x 2cm x fracture of lower end of femur left side 2cm above and behind injury No.8 grievous sharp. 10. Incised wound left occipital region 5cm x 1cm x bone deep transversally oblique simple sharp. 11. Incised wound 2cm x 1/2 x bone deep nape of neck oblique downward outward simple sharp. 12. Incised wound 2cm x 1/2cm x bone deep transversally oblique 1cm below injury No.11 nape of neck simple sharp. 13. Incised wound 8cm x 2cm x bone deep transversally oblique centre of forehead with fracture of frontal bone extending to the base of skull to left side up to middle cranial fossa and brain laceration left frontal lobe and under surface with blood clot and effusion of blood dangerous sharp. 14. Incised wound 1/2cm x 1/2cm x bone deep left side bridge of nose with swelling of face simple sharp. 15. Contusion left temporal region 5cm x 3cm simple sharp. 16. Contusion 2cm x 2cm on right wrist outer aspect power end simple blunt. According to Dr.Mukut Bihari Bhatnagar (PW16) the cause of death was coma as a result of head injuries. 5. Finding of learned trial court is primarily based on the testimony of Govind (PW3) and Latif (PW6). In his deposition Govind stated that ordinarily he and Ramjani used to go to the field together to keep watch on the crop of millet but on October 22, 1991 he alone had gone to the field where he found a she-buffalo grazing. He turned out she-buffalo and carried it back to the village. On the way Ramjani met and told him that she-buffalo belonged to Zakir. He then left she-buffalo there and proceeded to the field again along with Ramjani. Around 2 AM when they reached to the field they saw Zakir and Liyakat grazing she-buffaloes. He turned out she-buffalo and carried it back to the village. On the way Ramjani met and told him that she-buffalo belonged to Zakir. He then left she-buffalo there and proceeded to the field again along with Ramjani. Around 2 AM when they reached to the field they saw Zakir and Liyakat grazing she-buffaloes. Ramjani, Liyakat and Zakir after exchanging hot words started fighting with sticks. He (Govind) was also threatened. Some how he was able to leave the place of incident. On coming to the village he did not tell about the incident to anybody. Even he gave evasive answer about Ramjani to his brother in law. He admitted to have been arrested by the police in connection with the alleged murder of Ramjani. 6. Latif (PW6) identified the shawl and lungi recovered from the place of incident as of Liyakat and Zakir. 7. Other witnesses viz. Abdul Latif (PW1), Bashir Mohammad (PW8), Ram Charan (PW9), Radha Bai (PW10), Gafoor (PW15), Devi Lal (PW18), Keshari Lal (PW20), Ram Kalyan (PW22), Virendra Kumar (PW24), Shabbir Mohammad (PW25), Chhotu Khan (PW26) and Munna Bhai (PW28) did not support the prosecution case and they were declared hostile. 8. On scanning the evidence we notice following infirmities in the prosecution case:- (i) Informant Abdul Sattar (PW5) was not eye witness of the occurrence, still on the basis of his own sources he named the appellants Zakir Hussain, Liyakat Ali and other persons as the offenders. (ii) Govind (PW3), the star witness of the prosecution, was kept in custody for one month in connection with murder of Ramjani. (iii) The prosecution has failed to explain as to under what circumstances Govind, after his arrest in the capacity of offender, was made the eye witness of the occurrence. (iv) Conduct of Govind was unnatural in giving evasive answer about Ramjani to his brother in law. (v) The fact that shawl and lungi found near the dead body belonged to the appellants, could not be established. It is inexplicable as to why the assailants would leave their belongings near the dead body. 9. We have tested the evidence of Govind and Lattif from the point of view of trustworthiness and we are of the view that their statements do not inspire confidence. They are not the witnesses of sterling worth and reliance can be placed on their testimony. 9. We have tested the evidence of Govind and Lattif from the point of view of trustworthiness and we are of the view that their statements do not inspire confidence. They are not the witnesses of sterling worth and reliance can be placed on their testimony. The prosecution has failed to establish the charge under Section 302 Indian Penal Code against the appellants beyond reasonable doubt. Learned trial Judge in our opinion has committed illegality in convicting and sentencing the appellants in ignoring the infirmities of prosecution case as noticed by us. 10. As a result of above discussion, we allow the appeal and set aside the impugned finding of conviction and sentence of the appellants Zakir Hussain and Liyakat Ali under Section 302 IPC. We acquit the appellants of the said charge. The appellants Zakir Hussain and Liyakat Ali, who are in jail shall be set at liberty forthwith if not required to be detained in any other case.Appeal Allowed. *******