JUDGMENT 1. - In the instant criminal appeal filed under Section 374(2), Cr.P.C. the accused-appellant Thawara is challenging the judgment dated 05.08.2004 passed by the Addl. Sessions Judge (Fast Track) No. 1, Dungarpur in Sessions Case No. 135/2003, whereby, the trial Court convicted the accused-appellant for offences under Sections 302 and 323, I.P.C. and passed sentence of life imprisonment against the accused-appellant for offence under Section 302, I.P.C. along with fine of Rs. 5,000/- and, in default of payment of fine, to further undergo one year's simple imprisonment and passed sentence of one year's rigorous imprisonment for offence under Section 323, I.P.C. along with fine of Rs. 500/- and, in default of payment of fine, to further undergo 3 months' simple imprisonment. 2. Brief facts of the case are that upon complaint filed by Senga s/o Kuber Meena an FIR was registered against the accused-appellant at Police Station Sagwara on 10.10.2003 for offences under Sections 447 and 307, I.P.C., in which, complainant P.W.-1 Senga alleged that there was dispute of land in between deceased Badiya s/o Kuber Meena and accused Thawara, therefore, on 10.10.2003 at 8 P.M. when deceased Badiya was sitting in front of his house accused Thawara came there and forcibly entered in the house and told Badiya that he will not go back without beating him because he is not providing way to him in the land and inflicted one lathi blow upon head and other parts of body, due to those injuries, deceased Badiya fell down but Thawara continued to hit blows to him. It is also alleged that P.W.-2 Smt. Samrath w/o late Badiya and P.W.-3 Smt. Kajari, mother-in-law of deceased Badiya were in the house and intervened but accused-appellant Thawara inflicted injuries to them also and, thereafter, left the place of occurrence. After the incident took place, injured Badiya was brought to hospital where his treatment is going on. 3. The S.H.O., Police Station Sagwara registered the case against the accused-appellant for offences under Sections 447 and 307, I.P.C.; but, subsequently, at about 11.30 P.M. on 10.10.2003 the injured Badiya died in the hospital. 4. After registration of the FIR Ex.-P/1 the injured died, therefore, investigation was commenced for offence under Section 302, I.P.C. and, finally upon completion of the investigation, challan was filed against the accusedappellant for offences under Sections 302, read with Section 323, I.P.C. in the Court of Addl. Chief Judl. 4. After registration of the FIR Ex.-P/1 the injured died, therefore, investigation was commenced for offence under Section 302, I.P.C. and, finally upon completion of the investigation, challan was filed against the accusedappellant for offences under Sections 302, read with Section 323, I.P.C. in the Court of Addl. Chief Judl. Magistrate, Sagwara, from where, the case was committed to the Court of Sessions at Dungarpu. Learned Sessions Judge, Dungarpur transferred the case to the Court of Addl. Sessions Judge (Fast Track) No. 1, Dungarpur for trial where trial commenced and, after framing charge against the accused-appellant for offences under Sections 302 and 323, I.P.C. statements of 17 prosecution witnesses were recorded viz., P.W.-1 Senga, P.W.-2 Smt. Samrath, P.W.-3 Smt. Kajari, P.W.-4 Haliya, P.W.-5 Kaliya, P.W.-6 Kachara, P.W.-7 Dhula, P.W.-8 Smt. Sharda, P.W.-9 Smt. Punji, P.W.-10 Munna, P.W.-11 Bhanji, P.W.-12 Sukhlal, P.W.-13 Smt. Ganga Devi, P.W.-14 Vijendra Chaubisa, P.W.-15 Dr. Jagdish Badgurjar, P.W.-16 Ram Lal Parmar and P.W.-17 Nijamuddin; and, as many as 15 documents were exhibited. 5. Thereafter, statement of accused-appellant under Section 313, Cr.P.C. was recorded, in which, accused appellant refuted all the charges levelled against him and led evidence of D.W.-1 Wagha in support of his defence. 6. After recording evidence in the trial final arguments were heard and, thereafter, learned trial Court convicted the accused appellant for offences under Sections 302 and 323, I.P.C. and passed the sentences as noted above vide judgment dated 05.08.2004. 7. In this appeal, learned counsel for the appellant vehemently argued that in the trial prosecution has failed to prove its case beyond reasonable doubt because the author of the FIR is P.W.-1 Senga, brother of the deceased is not eye-witness but, in the FIR, registered at his instance, he has specifically alleged that accused appellant Thawara inflicted injury upon head and other parts of body by lathi but, as per the medical report, there is no injury upon the head of deceased Badiya and P.W.-1 Senga is not eye-witness, therefore, his testimony has wrongly been relied upon by the trial Court for the purpose of convicting the accused appellant. 8. Learned counsel for the appellant further argued that the trial Court has relied upon statements of P.W.-2 Smt. Samrath, wife of deceased Badiya and P.W.-3 Smt. Kajari, mother-in-law of the deceased. 8. Learned counsel for the appellant further argued that the trial Court has relied upon statements of P.W.-2 Smt. Samrath, wife of deceased Badiya and P.W.-3 Smt. Kajari, mother-in-law of the deceased. But, upon perusal of statements of both these witnesses it will emerge that there is no specific allegation for inflicting any injury upon any part of the body of deceased Badiya by the accused-appellant. While inviting attention of the Court towards cross-examination P.W.-3 Smt. Karjari, it is submitted that this witness who is alleged to have been present at the time the occurrence took place, being eye-witness, categorically said that she did not see accused-appellant Thawara beat deceased Badiya nor her daughter saw Thawara inflicting blows to deceased Badiya. But, P.W.-2 Smt. Samrath stated that at 8 P.M. her husband was sitting on cot, at that time, accused Thawara entered in the house and beat him and specifically said that who beat deceased Badiya is not known. It is vehemently contended on behalf of the appellant that upon such statements of the alleged eyewitnesses who are, in fact, interested witnesses, it cannot be said that the prosecution has proved its case beyond reasonable doubt. Therefore, the trial Court has committed gross error while relying upon the testimony of these witnesses which ought to have been discredited by the trial Court. 9. Learned counsel for the accused-appellant argued that recovery of lathi is also not proved in this case because two alleged motbir witnesses P.W.-10 Munna and P.W.-11 Bhanji were produced before the Court, who are said to be present at the time of recovery of lathi; but, upon perusal of statement of P.W.-10 Munna it will emerge that according to him no proceedings of recovery of lathi took place in his presence. The police came in village Salota and asked him to sign upon the papers. Likewise, P.W.-11 Bhanji is also not corroborating the prosecution story with regard to recovery of lathi because this witness said in his cross-examination that he was standing outside the house of the accused and police came out with lathi from the house. 10. The police came in village Salota and asked him to sign upon the papers. Likewise, P.W.-11 Bhanji is also not corroborating the prosecution story with regard to recovery of lathi because this witness said in his cross-examination that he was standing outside the house of the accused and police came out with lathi from the house. 10. Similarly, it is pointed out that lathi was also not found stained with blood, therefore, recovery is not proved but the trial Court ignored all these aspects of the matter and convicted the accused-appellant solely on the evidence of investigating officer as well as evidence of P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari which is totally contrary to the basic principles of criminal law. 11. Learned counsel for the appellant submits that all the other witnesses P.W.-8 and P.W.-9 are not eyewitnesses and whatever they stated is merely hearsay evidence, therefore, their testimony is required to be discredited but trial Court committed grave error while relying upon the evidence of these witnesses which is totally illegal. 12. While inviting attention of the Court towards statement of P.W.-15 Dr. Jagdish Badgurjar it is submitted by learned counsel for the appellant that as per statement of this witness he examined deceased Badiya and found that there were 3 injuries when he was admitted in the hospital and, out of said three injuries, 2 were simple in nature and opinion was reserved for injuries No. 1 and 2. Thereafter, at 11.30 P.M. Badiya died in the surgical ward and he performed the post mortem upon the body of deceased Badiya next day and found the above three injuries, out of which, injury No. 1 was sufficient to cause death; but, in fact, who inflicted these injuries is not proved by the prosecution beyond reasonable doubt, therefore, the accused-appellant is entitled to be acquitted from charges under Section 302 and 323, I.P.C. 13. The basic argument of learned counsel for the appellant is that there is no ample and reliable evidence on record to prove that accused-appellant and none else inflicted the injuries to deceased Badiya and, due to those injuries, deceased Badiya died. The basic argument of learned counsel for the appellant is that there is no ample and reliable evidence on record to prove that accused-appellant and none else inflicted the injuries to deceased Badiya and, due to those injuries, deceased Badiya died. Further, it is argued by learned counsel for the appellant that even if the prosecution story is accepted with regard to enmity in between the accused and deceased, then too, it cannot be said that the prosecution has proved its case for offence under Section 302, I.P.C. because the injuries found upon the body of the deceased cannot be caused with lathi which is said to be recovered at the instance of the accused. The doctor in his cross-examination said that the injuries which were found upon the body of Badiya can be caused if dashed against a wall in which some stone or wood peg is protruding; meaning thereby, such injury can be caused even if some scuffle took place, therefore, the doctor P.W.-15 Jagdish Badgurjar is also not corroborating the prosecution story with regard to injuries sustained by deceased Badiya, therefore, the accused-appellant is entitled for acquittal from the charges levelled against him under Sections 302 and 323, I.P.C. 14. Lastly, learned counsel for the appellant vehemently argued the trial Court has relied upon the evidence of P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari who are wife and mother-in-law of the deceased, respectively but, there is major contradiction in their statements; so also, they are not specifying any injury in their statements which is alleged to be caused as per the prosecution by the accused-appellant, therefore, the trial Court has committed gross error while accepting the prosecution story and treating the evidence sufficient for the purpose of proving the case against the accused appellant. 15. In view of the above arguments, it is prayed by the learned counsel for the appellant that this appeal may be accepted and conviction and sentence awarded against the accused-appellant may be set aside. 16. 15. In view of the above arguments, it is prayed by the learned counsel for the appellant that this appeal may be accepted and conviction and sentence awarded against the accused-appellant may be set aside. 16. Per contra, learned Public Prosecutor vehemently argued that two important eye-witnesses were produced before the Court who deposed in their statements that there was enmity in between the accused-appellant Thawara and deceased Badiya with regard to way upon their land, therefore, there was intention to beat Badiya and, the day on which the occurrence took place, the accused-appellant Thawara forcibly entered in the house of deceased Badiya where two eye-witnesses P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari were present and, in front of them, the accused inflicted injuries on Badiya which resulted into his death, therefore, the trial Court relied upon these witnesses and gave verdict that accused-appellant is guilty of committing offences under Sections 302 and 323, I.P.C. Therefore, it cannot be said that any error has been committed by the trial Court. 17. Learned Public Prosecutor further argued that as per the medical evidence also injury No. 1 was sufficient to cause death, therefore, even if it is presumed that the prosecution has not proved the recovery of lathi beyond any reasonable doubt, then also, the evidence of P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari cannot be discredited; more so, it can be said that the prosecution has proved its case beyond reasonable doubt. On the strength of these submissions it is contended by learned Public Prosecutor that the prosecution has proved the case against the accused-appellant beyond any shadow of doubt by leading reliable and cogent evidence against the accused-appellant, therefore, this appeal deserves to be dismissed. 18. After hearing learned counsel for the parties, we have scanned the entire evidence led by the prosecution to prove the case in the trial; so also, we have perused the finding given by the trial Court for convicting the accused-appellant. 19. Admittedly, in this case, out of 17 witnesses, 2 witnesses P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari are eye-witnesses and P.W.-1 Senga is author of the FIR. Upon perusal of the statements of P.W.-1 Senga, P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari it will reveal that there is material contradiction in the statements of these three witnesses. 20. 19. Admittedly, in this case, out of 17 witnesses, 2 witnesses P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari are eye-witnesses and P.W.-1 Senga is author of the FIR. Upon perusal of the statements of P.W.-1 Senga, P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari it will reveal that there is material contradiction in the statements of these three witnesses. 20. The author of the FIR P.W.-1 Senga stated in the FIR Ex.-P/1 that injury was inflicted by the accusedappellant upon the head by lathi when the deceased was sitting in front of his house. P.W.-1 Senga stated in the FIR that " vkt rk0 10-10-2003 jkr djhc 8 cts ofn;k mlds edku ds ckgj vkaxu esa cSBk Fkk fd Fkkojk gkFk es ykBh fy;s cfn;k ds vkaxu esa tcju vukf/kdkj izos'k dj cfn;k dks dgus yxk rq esjs dks jkLrs dh tehu ugha nsrk gSA " whereas before the trial Court P.W.-1 Senga said in his statement that his brother Badiya was sitting in the yard ( vkaxu ) meaning thereby, in the FIR he said "outside in front of his house" but before the Court he deposed that Badiya was sitting in the yard ( vkaxu ). Likewise, P.W.-2 Smt. Samrath, whose testimony is very important, said that her husband was sitting in yard ( vkaxu ) of his house, at that time, accused Thawara beat him. In her statement, she stated that, " ml fnu jkr dks 12-00 cts Fkkojk vk;k FkkA esjs ifr ?kj ds vkaxu esa [kkV ij cSBs cSBs chM+h ih jgs Fks fQj Fkkojk ykBh ysdj vk x;kA [kcj ugha iM+us nh ,sls Fkkojk us ekjkA esjs ifr cfn;k eqag ls Hkh ugha cksy ldsA fQj eSaus gks gYyk fd;k rks dksbZ ugha vk;k PW-3 Smt. Kajari said in her statement that, esjs tekbZ cfn;k vkaxu esa cSBs gq, Fks vkSj eSaus dgk fd vkaxu esa er tkvksA fQj Fkkojk us esjs tekbZ dks ihNs ls ekjk ;k dSls ekjk ;g esjs dks irk ughaA ". Meaning thereby, there is material contradiction in the statements of all these three witnesses. 21. None of the witnesses is corroborating the statement of each other and, upon perusal of the injury report, there is no lacerated wound found upon the body of deceased Badiya but injury No. 1 was found to be sufficient to cause death. Meaning thereby, there is material contradiction in the statements of all these three witnesses. 21. None of the witnesses is corroborating the statement of each other and, upon perusal of the injury report, there is no lacerated wound found upon the body of deceased Badiya but injury No. 1 was found to be sufficient to cause death. But, as per opinion of the doctor the injury can be caused if during scuffle any person is dashed against a wall in which some stone or wood peg is protruding such injury may be caused; meaning thereby, when there is no specific evidence to prove the fact that particular injury was inflicted and there is material contradiction with regard to place of occurrence, then, it cannot be said that the prosecution has proved its case against the accused-appellant beyond any reasonable doubt. 22. Statements of all the above three witnesses P.W.-1 Senga, brother of late Badiya, P.W.-2 Smt. Samarath, wife of the deceased and P.W.-3 Smt. Kajari, mother-in-law of deceased Badiya bear material contradictions; more so, P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari did not state in their statements that P.W.-1 Senga was present at the time when the occurrence took place. Both these witnesses stated in their statements that only two persons were present at the time of the occurrence. There is no whisper with regard to presence of P.W.-1 Senga. Therefore, statement of P.W.-1 Senga narrated in the FIR cannot be accepted. Likewise, upon perusal of statement P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari it can be said that they are not corroborating the prosecution story beyond any reasonable doubt. Therefore, their testimony has wrongly been relied upon by the trial Court for the purpose of conviction against the accused-appellant. 23. With regard to recovery of lathi, it can be said that prosecution has failed to prove the recovery of lathi from the accused because P.W.-10 Mana and P.W.-11 Bhanji who were said to be motbirs of recovery of lathi are not corroborating the prosecution version of recovery of lathi. 23. With regard to recovery of lathi, it can be said that prosecution has failed to prove the recovery of lathi from the accused because P.W.-10 Mana and P.W.-11 Bhanji who were said to be motbirs of recovery of lathi are not corroborating the prosecution version of recovery of lathi. PW-10 Mana stated in his statement that, " esjs lkeus dksbZ dk;Zokgh ugha gqbZ FkhA Ng ekg iwoZ iqfyl vkbZ Fkh tks fd lSyksrk xkao esa vkbZ Fkh PW-11 Bhamji stated in his statement that, ge tc ogka ij x;s rc ge gh nh yksx Fks vkSj dksbZ ogka ij ugha FkkA tc ge ckgj [kM+s Fks rc ?kj esa dkSu dkSu yksx Fks eq>s irk ughaA iqfyl okys ckgj M.Mk ysdj vk;s vkSj dgk fd geus ;g M.Mk fy;k gSaA " meaning thereby, upon statements of these witnesses, it cannot be said that recovery of 'Lathi' has been proved by the prosecution. Therefore, when recovery is not proved then it is not safe to convict the accused-appellant on the basis of such evidence. The trial Court did not consider this aspect of the matter and relied upon the evidence of interested witnesses. 24. After examining the entire evidence and carefully considering all aspects of the matter, it emerges that the finding given by the trial Court on the basis of testimony of P.W.-2 Smt. Samrath and P.W.-3 Smt. Kajari and other witnesses is not based upon sound appreciation of evidence; more so, there is major contradiction in the statements of all these witnesses who are interested witnesses and fact of recovery of lathi is not proved. Therefore, obviously it is a case in which the prosecution has failed to prove the case against the accused appellant beyond reasonable doubt but trial Court gave erroneous finding that prosecution has proved its case. Therefore, the accused-appellant has wrongly been convicted by the trial Court for offence under Sections 302 and 323, I.P.C. 25. As a result of the foregoing discussion, it is abundantly clear that in this case the prosecution has failed to prove its case beyond reasonable doubt. Therefore, this appeal is allowed. Conviction of the accused-appellant for offences under Sections 302 and 323, I.P.C. and consequent sentence passed by the trial Court vide judgment dated 05.08.2004 is quashed and set aside. The accused-appellant is in jail. He shall be released forthwith.Appeal allowed. *******