Judgment : Rajiv Sharma, J. This appeal is instituted against the judgment dated 24.9.2011, rendered by the learned Sessions Judge, Kinnaur at Rampur Bhushar, H.P. in Sessions Trial No. 51 of 2010, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 302 & 323 IPC, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo simple imprisonment for four months under Section 302 IPC. The accused was further sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 3000/- and in default to further undergo simple imprisonment for 3 months under Section 323 IPC. 2. The case of the prosecution, in a nut shell, is that on 6.7.2010 complainant Sanju Devi (PW-1) alongwith Bhishma and Suchi, daughter of her Jeth (deceased), was sleeping in the room on the upper storey. The deceased had slept in the room located in the lower storey. The accused had consumed liquor and slept in the room where his mother was sleeping. Since the accused was of violent nature, he used to keep Darat with him. On the intervening night of 6/7-7-2010, at about 2:00 AM, he knocked at the door of her room and started hurling abuses at his mother and brother. At about 9:00 AM, when she heard the sound of someone moving in the verandah, she opened the door and saw the deceased trying to make the accused understand by standing in the verandah, in front of the door of the room in which her mother-in-law was sleeping. In the process, the accused, brought a Darat and gave its blows on the head of the deceased. When Chhotu tried to snatch the Darat, she also sustained injuries on the right hand. On hearing the noise, Smt. Surendra, her jethani, also came out. In the meantime, the accused jumped from the verandah and ran away. The deceased died to the injuries. The site plan was prepared and photographs of the dead body were taken. The post mortem was got conducted. The viscera was sent to FSL and report was obtained. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The deceased died to the injuries. The site plan was prepared and photographs of the dead body were taken. The post mortem was got conducted. The viscera was sent to FSL and report was obtained. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 14 witnesses. The accused was also examined under Section 313 Cr. P.C. He has denied the prosecution case. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Jagdish Thakur, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 24.9.2011. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 Sanju Devi testified that she is the wife of Vipan Singh. Vipan Singh had two brothers including Sher Singh deceased. The accused was brother of her husband. Sher Singh was married and accused Man Singh was not married. Her mother-in-law Leela Devi was suffering from cancer for the last 5/6 months. Her Bhanji Chhotu (Bhishma) had come to their house. Her husband and her Dever were residing in the same house. On 7.7.2010, she alongwith her Bhanji Chhotu (Bhishma) and Suchi (her Jeth’s daughter) were sleeping in separate room on the upper storey. In the lower storey, her Jeth Sher Singh was sleeping alongwith his two daughters. Accused was sleeping in a room in the same storey/floor where she alongwith the girls was sleeping. The accused had consumed liquor and was having a Darat. At about 4:00 AM (during night), accused started knocking at the door of the room in which she was sleeping by proclaiming that he would kill them. Thereafter, he went to his room and later on started troubling her mother-in- law. On hearing the noise, she came out from her room and saw accused giving Darat blow to her Jeth Sher Singh. He had given 4/5 arat blows to him on different parts of the body. Thereafter, he went to his room and later on started troubling her mother-in- law. On hearing the noise, she came out from her room and saw accused giving Darat blow to her Jeth Sher Singh. He had given 4/5 arat blows to him on different parts of the body. When they tried to intervene, the accused also gave a Darat blow to her Bhanji Bhishm, as a result of which, she sustained injury on her hand. When they raised an alarm, her Jethani Surindra also reached at the spot. The accused managed to run away alongwith the Darat. Sh. Sher Singh died on the spot. The police came in the morning and recorded her statement Ext. PW-1/A. She identified Darat Ext. P-2. She has denied the suggestion in her cross-examination that the accused used to demand his share in the orchard/land but they did not allow him to get the same. She admitted that the accused had a separate kitchen alongwith his mother from her husband as well as deceased Sher Singh. She admitted that nearby their house, other houses are situated and it is a thickly populated locality. She also admitted that in case, some noise takes place in their house, it is audible in the near houses. 7. PW-2 Bhishma Kanwar deposed that on 7.7.2010, she was sleeping in a room where her maternal aunt Sanju and Suchi were also sleeping. Her maternal uncle (Sher Singh) was sleeping in a room in the lower storey. The accused was sleeping in the adjacent room, where they were sleeping alongwith her maternal grandmother (Nani). For the last 5-6 months, her Nani was ill. At about 2/3 AM (night), accused firstly knocked at the door of their room and hurled abuses. He was asking them to come out. They called Sher Singh. Then, accused started troubling her Nani. Thereafter, when Sher Singh came, accused having Darat in his hand started giving its blows to Sher Singh. Firstly, Darat blows were given on the back and thereafter its blow was given on the side of the head. When they tried to intervene, one Darat blow also hit her hand and she sustained injuries. On hearing noise, her another maternal aunt Surindra also came on the spot and she also saw the incident. Due to the injuries sustained, her Mama (Sher Singh), fell on the floor and died. When they tried to intervene, one Darat blow also hit her hand and she sustained injuries. On hearing noise, her another maternal aunt Surindra also came on the spot and she also saw the incident. Due to the injuries sustained, her Mama (Sher Singh), fell on the floor and died. The police got her medically examined and MLC was issued. She also admitted in her cross-examination that accused had separate big orchard with good produce. She denied that all the affairs of the orchard were being managed by Sher Singh. She also admitted that nearby the house of her maternal uncles, there is a thick population. She also admitted that the noise from the house of her Mamas could be audible in the nearby houses of the Village. 8. The statement of PW-3 Kehar Singh is formal in nature. 9. PW-4 Manjit Singh deposed that he came to know that accused Man Singh had killed his brother Sher Singh by giving Darat blows on his body and ran away from the spot. On 8.7.2010, he was apprehended by the police in his presence and Daler Singh. He produced Ext. P-2 Darat which was measured by the police and the sketch of the Darat was prepared vide Ext. PW-4/A. The Darat was taken into possession vide memo Ext. PW-4/C. The accused produced his clothes before the police and taken into possession vide memo Ext. PW-4/D. 10. Statements of PW-5 to PW-7 are formal in nature. 11. PW-8 Dr. Piyush Kapila, has conducted the post mortem alongwith Dr. H.S. Sekhon, Professor and Head including Dr. Piyush Kapila and Dr. Rahul Gupta. The post mortem report is Ext. PW-8/C. According to the opinion of the Board, the deceased died due to chopped wound to head and brain. However, the final opinion was kept pending for want of chemical examiner report. The opinion of the Board after seeing the chemical examiner report Ext. PW-8/D, remained the same since no poison or alcohol was found in the viscera. The probable time that might have elapsed between injuries and death was immediate and that between death and post mortem was opined to be around 12 hours. 12. PW-9 Dr. D.K. Bhaglani, has examined PW-2 Bhishma Kanwar and MLC Ext. PW-9/C was issued. He deposed that the weapon used was blunt. The injury was simple and the probable duration of injury was within 6 to 12 hours. 12. PW-9 Dr. D.K. Bhaglani, has examined PW-2 Bhishma Kanwar and MLC Ext. PW-9/C was issued. He deposed that the weapon used was blunt. The injury was simple and the probable duration of injury was within 6 to 12 hours. 13. Statement of PW-10 Ishwar Sharma, is formal in nature. 14. PW-11 HC Vinod Kumar, deposed that on 7.7.2010, at 8:10 AM, Const. Gulab Singh brought a rukka Ext. PW-1/A in the Police Station. He made endorsement Ext. PW-11/A on the rukka and on the basis of the same FIR Ext. PW-11/B was recorded. On the same date, SHO Purshotam Dutt deposited one sealed parcel sealed with 3 seals of seal impression “K” in which the blood of the deceased in plastic vial alongwith blood lifted on cotton from the spot was stored alongwith specimen of seal impression “K”. He entered the same in Malkhana register at Sr. No. 337. He sent all the parcels to FSL, Junga on 12.7.2010 through Constable Sat Pal. Constable Sat Pal after depositing the parcels obtained the receipt on the RC itself and deposited the same with him. 15. PW-12 Constable Sat Pal deposed that on 12.7.2010, he deposited the blood sample, Drat, clothes and viscera of the deceased sealed alongwith specimen of seal impression vide RC No. 37/2010 dated 12.7.2010 at FSL, Junga and obtained the receipt in RC itself. 16. Statement of PW-13 Raj Kumar, Patwari, is formal in nature. 17. PW-14 SI Purshottam Dutt, deposed that on 7.7.2010, Pradhan Gram Panchayat Melandi informed on telephone that the accused had killed his brother Sher Singh on the basis of which, rapat No. 4A dated 7.7.2010 Ext. PW-14/A was entered. He alongwith other police officials left for the spot for verification. On the spot, the statement of complainant Sanju Devi was recorded under Section 154 Cr. P.C. Ext. PW-1/A. He took photographs of the dead body. He also collected the blood stains lying on the spot in a vial and the same were put into parcel sealed with seal impression “K” and then taken into possession vide memo Ext. PW-3/B. He filled in the inquest forms. The dead body was sent for post mortem examination to IGMC, Shimla. On 8.7.2010, accused got recovered Darat Ext. P-2. Sketch map Ext. PW-4/A of Darat Ext. PW-3/B. He filled in the inquest forms. The dead body was sent for post mortem examination to IGMC, Shimla. On 8.7.2010, accused got recovered Darat Ext. P-2. Sketch map Ext. PW-4/A of Darat Ext. P-2 was prepared and the same was put into a parcel and sealed with seal impression “K” and taken into possession as per seizure memo Ext.PW-4/C in the presence of witnesses Manjit Singh and Daler Singh. The clothes i.e. shirt Ext. P-4, jacket Ext. P-5, lower Ext. P-6 and inner Ext. P-7 were put into a parcel and sealed with seal impression “K” and taken into possession vide seizure memo Ext. PW-4/D. The case property was deposited with MHC. In his cross-examination, he has admitted that the house of the deceased is situated in the middle of the village. He also admitted that in village Ghaiti, there are about 10 to 15 houses. He also admitted that there are 2-3 houses adjacent to the house of the deceased. He also admitted that a sound from one house can be heard in another house. Volunteered that there were minor injuries on the person of the accused. He also admitted that the accused was also got medically examined. He further admitted that Darat Ext. P-2 was taken into possession on the next date of occurrence. 18. According to the statement of PW-14, SI Purshottam Dutt, on 7.7.2010, a telephonic information was received from Pradhan Gram Panchayat, Melandi, that the accused had killed his brother Sher Singh on the basis of which, rapat No. 4A dated 7.7.2010 Ext. PW-14/A, was entered. The statement of PW-1 Sanju Devi was recorded under Section 154 Cr. P.C. and thereafter FIR was registered. It has not come on record as to who had informed the Pradhan, Gram Panchayat, Melandi, about the incident. It has not come in the statements of PW-1 Sanju Devi or PW-2 Bhishma Kanwar that they have informed the Pradhan, Gram Panchayat, Melandi. Rapat No. 4A dated 7.7.2010 Ext. PW-14/A was entered at 3:30 PM on the basis of the report of Sohan Singh, Pradhan, Gram Panchayat, Melandi on telephone. Sh. Sohan Singh, though a material witness, has not been examined by the prosecution. The prosecution has not attributed any motive in the instant case. The accused was the younger brother of the deceased. Mr. Ramesh Thakur, Asstt. PW-14/A was entered at 3:30 PM on the basis of the report of Sohan Singh, Pradhan, Gram Panchayat, Melandi on telephone. Sh. Sohan Singh, though a material witness, has not been examined by the prosecution. The prosecution has not attributed any motive in the instant case. The accused was the younger brother of the deceased. Mr. Ramesh Thakur, Asstt. Advocate General, has vehemently argued that the accused was seeking partition of the land. However, PW-2 Bhishma Kanwar (Chhotu), in her cross-examination has admitted that the accused had a separate big orchard having good produce. PW-1 Sanju Kumari in her cross-examination has denied the suggestion that the accused used to demand his share in the orchard but they did not allow to give the same. 19. According to the prosecution, the wife of the deceased Sher Singh was also present on the spot. She has not been examined by the prosecution, though material witness in the case. The prosecution has not examined the mother of the deceased and three daughters of deceased who were in the house at the relevant time on 7.7.2010. The prosecution has also not associated any independent witness from the village. PW-1 Sanju Devi has categorically admitted that nearby their house, other houses are situated and it is a thickly populated locality. She also admitted that in case, some noise takes place in their house, it is audible in the near houses. To the same effect is the statement of PW-2 Bhishma Kanwar, who deposed that nearby the house of her maternal uncles, there is a thick population. She also admitted that the noise from the house of her Mamas could be audible in the nearby houses of the Village. In case, the incident had taken place in the manner in which the prosecution has projected, it was bound to attract the attention of the occupants of the houses nearby the house of the deceased. 20. The case of the prosecution is that the accused ran away from the spot after committing the crime and he was apprehended on 8.7.2010. In the presence of PW-4 Manjit Singh and Daler Singh, he produced the Darat Ext. P-2. He has not made any disclosure statement. It is not believable that accused was carrying the Darat Ext. P-2 with him from 7.7.2010 till 8.7.2010. In the presence of PW-4 Manjit Singh and Daler Singh, he produced the Darat Ext. P-2. He has not made any disclosure statement. It is not believable that accused was carrying the Darat Ext. P-2 with him from 7.7.2010 till 8.7.2010. The first reaction of the accused would have been to conceal the weapon of offence instead of carrying it and producing the same before the police. PW-1 Sanju Devi deposed that the accused used to keep Darat with him. In her cross-examination, she deposed that regarding keeping of Darat by the accused, they had lodged report with the police several times but they did not pay any heed. There is no contemporaneous record to suggest that at any given point of time, the report was lodged with the police of keeping the darat by the accused. The accused had also received injuries as per the statement of PW-14 SI Purshotam Dass. He was medically examined but his medical report has not been produced on record. One Dr. C.L. Sharma, present in the Court was given up being unnecessary. The police should have placed on record the copy of the MLC of the accused, more particularly, when he was examined by the doctor and as per PW-1 Sanju Devi, the accused had consumed alcohol. In case the MLC had been produced on record, it would have shown the nature of the injury sustained by the accused or if any ethyl alcohol found in his blood/urine. 21. Mr. Ramesh Thakur, Asstt. Advocate General, has vehemently argued that as per the post mortem report, the deceased had died due to chopped wound to head and brain. Though the deceased has died due to the injuries but the prosecution has conclusively failed to prove that the injuries were inflicted by the accused. Mr. Ramesh Thakur, Asstt. Advocate General has also argued that PW-2 Bhishma Kanwar had tried to intervene but she also received injuries. The injuries received by PW-2 Bhishma Kanwar as per the statement of PW-9 Dr. D.K. Bhaglani were simple in nature and the weapon used was blunt. There was no fracture, whatsoever. In case the accused had hit PW-2 Bhishma Kanwar, with Darat Ext. P-2, she would have received serious injuries. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 22. Accordingly, the appeal is allowed. D.K. Bhaglani were simple in nature and the weapon used was blunt. There was no fracture, whatsoever. In case the accused had hit PW-2 Bhishma Kanwar, with Darat Ext. P-2, she would have received serious injuries. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 22. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 24.9.2011, rendered by the learned Sessions Judge, Kinnaur at Rampur Bushahr, H.P., in Sessions trial No. 51 of 2010, is set aside. The accused is acquitted of the charges framed under Sections 302 and 323 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 23. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.