SHARMA, J. - (1.) THE appellant and three others faced trial in Sessions Case No. 5, 1999 before the learned Additional Sessions Judge Bayana District Bharatpur who vide judgment dated August 28, 2000 acquitted three other co-accused but convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment of life and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment.
(2.) THE prosecution story is woven like this: On November 4, 1998 around 12. 30 PM Sarpanch of Gram Panchayat Samogar went to Police Station Bayana and informed Diwan Singh ASI (PW. 12) that Natthi (since deceased) was lying in an injured condition. Diwan Singh then rushed to the Hospital Bayana and found Natthi admitted in Medical Ward. Diwan Singh noted down Parcha Bayan of Natthi (Ex. P. 14) in the presence of Dr. Ravi Gupta. In the Parcha Bayan Natthi stated that on November 3, 1998 at about 6 PM while he was sitting out side of his house on a Chabutra suddenly Prahlad and his brother told him (Natthi) that his son falsely implicated them in a woman abducting case. Buddhi and Mangi exhorted to inflict lathi blow. Hareti and Ramji Lal intervened but he was given continuous beating. On the basis of Parcha Bayan of Natthi a case under Sections 341, 323 and 34 IPC was registered and investigation commenced. Natthi died on November 6, 1998 and case was converted into one under Section 302 IPC. After usual investigation charge sheet was filed and in due course the case came up for trial before the Learned Additional Sessions Judge Bayana District Bharatpur Charge under Section 302/34 IPC was framed against the appellant and three other co- accused persons, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 16 witnesses. In the statement under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned Additional Sessions Judge on hearing final submission convicted and sentenced the appellant as indicated herein above. Death of Natthi was indisputably homicidal and as per Post Mortem Report (Ex. P-16) following ante mortem injuries were sustained by the deceased: " 1. Lacerated Wound cry cut 2 cm x 1 cm x bone deep Lt. parietal region. 2. Abrasion dry cut (scar) 1 cm Lt. side forehead 3. Punctured lacerated wound 3 cm x 1 cm x bone deep Rt. Forearm margins 1/3 mid part black diffuse swelling all over mid 1/3 x 4' x 3" Fralna of Rt. both ulna with radius mid 1/3. 4. Lacerated wound downward 2 cm x 1/2 x b. d. 1" above Inj. No. 3 on Rt. forearm dorsum. 5. Lacerated wound downward 4 cm x 1 cm x M. D. Rt. leg entering lower 1/3. 6. Bluish diffuse swelling 8 cm x 5 cm x lateral ankle to joint with abrasion 1 cm x 1 L. joint below knee towards left side. According to Dr. Banay Singh (PW. 15) The cause of death was coma brought out as a result of head injury. Having heard the rival submissions and on a careful analysis of material on record we find that charge under Section 302 IPC is not ex facie made out against the appellant. The reason are:- (i) In the Parcha Bayan (Ex. P. 14), which can be termed as dying declaration of the deceased, there is no specific allegation against the appellant for having inflicted injury on the person of the deceased. (ii) Ramji Lal (PW. 1) and Hareti (PW. 2), who were named as eye witnesses of the occurrence in the Parcha Bayan, did not depose that the appellant inflicted injury on the person of deceased. Ramji Lal in his cross examination stated that incident occurred in the darkness and he did not see Prahlad inflicting injury to Natthi. Hareti also did not see appellant inflicting injury to Natthi and Hareti was declared hostile by the prosecution. (iii) Other witnesses of the prosecution Bissa (PW. 3 ). Pooniya (PW. 4), Girgoli (PW. 5), Lasnya (PW. 6), Visan (PW. 7), Ram Swaroop (PW. 10) and Samanta (PW. 13) did not to the prosecution line and they were declared hostile. (iv) Dr. Banne Singh (PW. 15), who performed autopsy on the dead body of Natthi, in his deposition stated that he found one lacerated wound 11 x 11 cm on the left side of the face which could be caused by biting of a wild mouse. (v) The case of the appellant is not distinguishable with that of other accused persons who have been acquitted. These are material infirmities, which go to the root of the case, escaped attention of the learned trial Judge. We are thus of the considered view that charge under Section 302 IPC is not established against the appellant. For these reasons we allow the appeal and set aside the judgment dated August 28, 2000 of the learned Additional Sessions Judge Bayana, District Bharatpur. We acquit the appellant of the charge under Section 302 IPC. The appellant, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case. . ;