1. The prosecution case is that the accused Srikishan, who is the cousin of the deceased Lukka, and Lukka jointy owned and possessed certain agricultural land. Partition is alleged to have taken place between them Srikishan sold away his share of land to a third party yet, he claimed a share out of the land in possession of Lukka. This is said to be the cause of strained relations between the deceased and Srikishan. The prosecution version is that Lukka was called by Neta, maternal uncle of Srikishan, to village Ratha from village Ambah. It may be stated, here, that though Lukka had a house and some land in Ratha, he used to reside at Ambah. The prosecution story proceeds that on 16-11-1965, at about noon, while Lukka was cultivating land in village Ratha, 8 to 10 persons dressed in Khakhi and armed with guns, came to the spot and one of them fired at Lukka as a result of which Lukka fell dead. Mst. Dewalia (P.W. 7), second wife of Lukka, is said to have witnessed the occurrence. The FIR was lodged by one Sarman (P.W. 1) the same day at about 3 P. M. at police-station Mahua, situated at a distance of five miles from the place of occurrence. A copy of the FIR has been placed on record and marked Ex P.1. It is mentioned therein that while Sarman was filing earth on the road near village Hingotivai. one Harvilas Teli resident of Ratha, came there and told him that some 10 to 12 persons dressed in Klzaklzi and armed with guns. came from the side of Karsada and fired at Lukka On receipt of this information, the police started invesligation and ultimately challaned New as well as the present appellant Srikishan for the murder of Lukka. It appears that Srikishan was not available for considerable time and. therefore, the case was tried against Neta only who was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the trial Court, but on appeal he was acquitted by the High Court. Thereafter. the appellant was apprehended and he was also put up for trial.

2. The learned Additional Sessions Judge has placed reliance on the testimony of the sole eyewitness Mst. Dewalia (P.W. 7) and has convicted and sentenced the appellant under section 302 of the Indian Penal Code on the basis of her testimony.

3. Held: It is amply clear that the witness is highly interested in the prosecution, inimically disposed towards the accused and her testimony is most unreliable and undependable. In out opinion, no conviction can be based on a testimony like this.

4. As we have already stated above, there is no other evidence connecting the accused with the crime. We are further constrained to observe that the learned Additional Sessions Judge was in error in using the previous statement of Smt Dewalia. as a substantive piece of evidence and using statements recorded by the police as evidence against the accused for the purpose of recording a finding of guilt against the accused. Appeal allowed.