B.R.ARORA, J. - (1.) THIS appeal is directed against the judgment dated August 9, 1989, passed by the Sessions Judge, Banswara, by which the learned Sessions Judge convicted and sentenced the appellant for the offence under Section 304 part II, I. P. C.
(2.) THE incident, which led to the prosecution and trial of the appellant Gautam took place on Dec. 13, 1986 at about 4. 00 P. M. in the house of PW 1 Ditiya. THE case of the prosecution is that Smt. Toli wife of accused Gautam had come to meet his maternal uncle Ditiya. Her husband Gautam- the present accused-appellant-came to the house of PW 1 Ditiya at about 4. 00 P. M. and gave beating to Toli by legs, due to which she died. At that time PW 1 Ditiya, PW2 Mst. Kali, PW 9 Bhooli and PW10 Dhooli had gone to their field. THEy heard the cries of Smt. Toli and when they reached the house, Smt. Toli was vomitting and was feeling pain and she became unconscious when they reached there. Accused Gautam was standing there at that time. On enquiry, the accused made a confessional statement that in a state of anger, he gave blows by legs to the deceased as she had come to her maternal-uncle without any permission and by leaving her daughter. THE prosecution, in support of its case, has examined fifteen witnesses in all. Out of the fifteen witnesses. PW 1 Ditiya, PW 2 Kali, PW 9 Bhooli, and PW 10 Dhooli have been produced as eye witnesses to the occurence. THE evidence of the eye witnesses are sought to be corroborated by the evidence of PW 3 Lalu, PW5 Gautam, PW 6 Kacharu, PW 8 Keshari and PW 12 Hariya, who have been produced to prove the extra judicial confession made by the accused-appellant. THEother witnesses, how have been produced to sought the corroboration are, PW 7 Kaluram, PW 8, Keshari and PW 11 Nagji THEse are the witnesses who are the relatives of the deceased Toli or the brothers. THEn there is the evidence of PW 13 Mohd. Sayeed Head Constable, Incharge, Police Station Khamera, where the First Information Report was lodged and who, also conducted the investigation. PW 14 Lehru Lal is the Traffic Inspector (Mobiles), Udaipur, who, also, witnessed the preparation of various documents prepared by Mohd. Sayeed H. C. PW 15 is Dr. Anil Banveer, who performed the post mortem and according to Dr. Anil Banveer, the cause of death of Smt. Toll was shock due to the injury to the vital organ, which are spleen, liver, lung and large intestines producing internal haemorrhage and neurogenic shock. I have heard Mr. Niranjan Gaur, who was appointed as Amicus Curiae by the Court and the learned Public Prosecuter. There are four eye witnesses to the occurrence who have been produced by the prosecution. PW1 Ditiya is the maternal-uncle of the deceased Toli. He has stated that Smt. Toli was married to Gautam (accused) and about six months before Smt. Toli came to his house all alone and informed him that on account of some dispute with her husband, she had come all alone. Next day, in the evening, at about 4,00/5. 00 p. m. , accused Gautam came to his house and at that time Smt. Toli was sitting at the court yard and he, his wife Kali and both the daughters were in jungle and were collecting fodder. Accused Gautam came there, raised quarrel with Toli and inflicted blows on her stomach by lags, upon which Smt. Toli raised alarm. On hearing the alarm, healongwith his wife which there. Accused Gautam was standing there at that time and Smt. Toli was crying and she informed them where the accused had inflicted injuries. Thereafter Smt. Toli voitted. In the mean while, PW 3 Lalu and PW 5 Gautam, also, came there. After vomitting, she did not speak. Tulsi and Bhooli, the two daughters of Ditiya were, also there. They, thereafter, sent the message to the parents of Smt. Toli and caught-hold of accused Gautam. Thereafter Kanji, Maanji and Kacharu, also, came there and asked them to lodge the report and he thereafter lodged the report at Police Station Khamera. In the examination-in-chief, though this witness has stated that the accused was present there and he gave blows by legs on the stomach of the deceased and the deceased Smt. Toli informed him, also, regarding infliction of the injuries, but in the cross-examination, he has stated that when they reached in the house Smt. Toli was not in a position to talk and as soon as they reached there, Smt. Toli vomitted and became unconscious, and thereafter did not regain consciousness till she died. He has, also, admitted that on the next day, they called accused Gautam, which means that accused Gautam was not present there at that time. He has, also, admitted in the cross-examination that Lalu, Hariya and Gautam were called by him after this incident and for calling them, he himself had gone to their house. The evidence of this witness does not inspire confidence. He has stated in the examination-in-chief that Lalu and Gautam came there before Smt. Toli died & he has, also, stated in the examination-in-chief that Kolji Manji and Kachru came there from village Fefar, but in the cross-examination he stated that he himself went to call Lalu, Hariya and Gautam. He has admitted in the cross-examination that Smt. Toli was not in a fit condition to talk and she did not tell anything to him. From a bare reading to the evidence of this witness it reveals that neither he had seen the accused inflicting injuries to the deceased nor was anything told to him by the deceased as all of them came after she died. So far as the presence of accused Gautam is concerned, though he has stated in the examination-in-chief that he was present there and they caught-hold of him, but in the cross-examination, he has admitted that accused Gautam was called on the next day. Similar is the statement of PW2 Kali, PW9 Bhooli and PW 10 Dhooli. A close scrutiny of the evidence of these witnesses, who have been produced by the prosecution as the eye witnesses of the occurrence clearly shows that they were not the eye witnesses to the occurrence. They reached at the scene of the occurrence when Smt. Toli became unconscious. All these witnesses, in cross-examination, have stated J that when they reached there, Smt. Toli was vomitting and she was not in a position to speak and was un-concious. Thus, these four witnesses are not the eye witnesses to the occurrence. So far as the evidence of PW 3 Lalu, PW 4 Rajiya, PW 5 Gautam and PW 12 Hariya regarding extra judicial confession, alleged to have been made by the accused appellant, is concerned that also does not inspire any confidence because PW 1 Ditiya himself has stated that the accused Gautam was called on the next day. The presence of the accused at the scene of the occurrence, thus, becomes doubtful. When he was called on the next date then bow he may make extra-judicial confession before these witnesses. There is no other evidence to connect the accused with the crime. In the result, this appeal, filed by the accused- appellant Gautam is allowed. The conviction and sentence passed against the accused-appellant by the learned Sessions Judge, Banswara, are set aside and the accused is acquitted of all the charges levelled against him. The accused is in jail he may be released forthwith if not required in any other case. . ;