Judgment S. H. S. Abibi, J. 1. -rajesh Kumar Sinha, Framed Kumar Gupta and mahesh Kumar Sinha have preferred this appeal against their conviction under Sections 302/34 of the Indian Penal Code (for short I. P. C.) and sentence of rigorous imprisonment for life. 2. The case of the prosecution appears to be that on 27-10-1983 at about s.30 A. M. dead body of Ashwani Kumar Sinha was found lying near the bari of the house of the informant Bishundeo Prasad (P. W.5), materna-luncle of the deceased. Since before his death the deceased was living with the informant. The dead body was found near Amla tree and where from the dead body was taken to the room where he used to sleep and immediately shri B. K. Sahay, Advocate a neighbour of the informant was informed. Some neighbours also came and saw the dead body. The father and mother of the deceased were at Deori Block where the father was as Headclerk and on getting the information they came. People, who had collected, were saying that in the night there was some quarrel between the deceased with his friends near Samajbari. From the pocket of the deceased a letter was recovered being addressed to appellant Rajesh Kumar A written report (Ext.3) was filed on 29-10-1983 at 1.45 P. M. : which formed basis of first information report (Ext.8 ). The first information report was registered against unknown. 3. Investigation of the case was taken up by Lakshmi Narain Gupta (P. W.8) who visited the spot and found the dead body and after preparing the inquest report, sent it for post-mortem examination, which was done by dr. S P. Jaiswal (P. W.2 ). The investigation officer (for short I. O.) found a rope also hanging from the tree but on climbing the tree he did not find tying any of string. After completing investigation charge sheet was submitted by the I. O. against the appellants. 4. The accused, in defence, denied the prosecution case and alleged that they have been falsely implicated in this case. No witness in defence waa produced. 5. The learned trial court after considering the entire matter has convicted and sentenced the appellants as said above. 6. The prosecution, in support of its case, produced nine witness. P. W.1 Surendra Pd. is brother of the informant P. W.2 is Dr. No witness in defence waa produced. 5. The learned trial court after considering the entire matter has convicted and sentenced the appellants as said above. 6. The prosecution, in support of its case, produced nine witness. P. W.1 Surendra Pd. is brother of the informant P. W.2 is Dr. S. P. Jaiswal, who conducted the post-mortem examination of the deceased. P. W.3 nisi Kunth Sinha, father of the deceased is hearsay witness and so is P. W.4 mother of the deceased Bhagwan Peyari Devi. P. W.5 Bishundeo Pd. is informant P. W.6 Rita Sinha is sister of the deceased who has said about some facts of the caie. Shichandra Choudhary (P. W.7) is I. O. who Had submitted charge sheet on getting the investigation from P. W.8 Lakshmi narain Gupta the first I. O. P. W.9 Satish Kumar Sinha is brothe-in-law of the deceased who has also deposed of some facts. 7. It has been urged on behalf of the appellants that the order of conviction of the appellants is bad in law as the circumstances do not make out a case against the appellants and there was no motive to the appellants to commit this offence. It is a case of circumstantial evidence and so the same will have to be scrutinised with care and caution. 8. P. W.5 Bishundeo Prasad is the informant who has said that the victim was his maternal nephew. His neice (Bhagini) came to his room weeping and saying that Anshu (victim) was lying under tree and a rope was hanging. Upon this they went there and brought the victim in the room. He informed Sri Sinha, Advocate who came. One Lallu Chamar and persons of Mohalla also came. Information was sent to the father and mothet of the victim who also came at about 1 P. M. From the pocket of the victim a letter was recovered and then a written report along with the letter was filed whereafter the first information report was registered. Some one from the crowd said that the victim was killed by the three appellants as they were saying that the victim had to be finished. The victim had friendship with the three accused. He has filed a letter written by the victim to Puja @ Rekha by pencil. Some one from the crowd said that the victim was killed by the three appellants as they were saying that the victim had to be finished. The victim had friendship with the three accused. He has filed a letter written by the victim to Puja @ Rekha by pencil. He identified the writings of Puja and the victim both and a letter written by her has also been filed. Before the occurrence on 27-10-1983 at about 5.30 P. M. he had seen Rekba Puja talking with the victim in the gali (road) and on enquiry it was said that she had come to take milk and also meeting the sister of the victim. In cross-examination he said that he was guardian of the victim. During his office hour also the victim used to remain in his house. There was orchestra party of the victim and the accused and others of the mohalla. Victims other friends did not come to the house. Rajeshs father was doing coal business for last about 2-3 years. Maheshs father, who was Palledar, had retired from service. At the time of marriage Rajeshs family members had come but he had no talk with them. On 27-10-1983 be had seen the victim and Rekha talking while he was coming back from the office. There was no talk with them. The letter filed by him was not written before him nor seen being written. After coming from the office he used to go out when the victim remained in the house. He and the victim used to take dinner together, The witness used to sleep at about 9 P. M. and the victim also used to go to sleep to his room which was adjacent 40 yards from the informants room. Two to three times he was found absent from his room and on enquiry he used to say that he had gone to see cinema and he used to laugh. On the night of occurrence he came at about 8 P. M. and he did not take food and did not come out. When the victims sister went to ask for meal he was not found in the room. On the night of occurrence he came at about 8 P. M. and he did not take food and did not come out. When the victims sister went to ask for meal he was not found in the room. Next morning he came to know when his younger brothers wife and his niece Rita came running to his room and awake him (witness) and then he went there and found the victim dead by touching his dead body. He was putting on pant, shirt and shoes. He was brought to the room. The rope was hanging by the branch and could not be caught by hand. Sri r. B. Sahay, Advocate being immediate neighbour was informed who came and stayed about 45 minutes. He enquired as to why rope had baen drawn away and so it was restored to its place. His pocket was searched and thereafter information was sent to the police. S am Kalyan Kendra is away from his house and then there is the house of Kamlapat Ram where is his mica company. The parents of victim reached the place of occurrence at about 1 P. M. that (The witness) wrote the application at the police-station and he had no suspicion about any one. He had said that near Samaj Bari the accused had assaulted the victim and this fact he had come to Know from some people, who had said that the victim was to be finished. He had said to the police that, Mahendra, Alok, Faguni and Lallu Chamar had come and seen the dead body. The police came to the spot and stayed upto 4/4.30 P. M. The I. O. saw the tree and seized the rope. He examined the members of the family. Police also examined Sri K. B. Sahay, Advocate. He had not gone there. He denied the suggestion on behalf of the appellants. 9. P. W.1 Surendra Pd. is the brother of the informant (P. W.5) He has said that occurrence is of night of 28-10-1983. He had gone to see Cinema at 8.30 P. M. The victim was not inside the house. He had gone to Moti picture and returned from there at about 1 A. M. and went inside and got sleep. At S A. M. on 29-10-1983 his niece Rita came to him weeping. He had gone to see Cinema at 8.30 P. M. The victim was not inside the house. He had gone to Moti picture and returned from there at about 1 A. M. and went inside and got sleep. At S A. M. on 29-10-1983 his niece Rita came to him weeping. He went to the well and saw the dead body lying near Amla tree and a rope was hanging. The dead body was brought to the room of the victim. The rope was Kept intact there and on catching the branch he did not find any sign or mark of the rope. Sri K. B. Sahay, Rabindra Babu, Mahendra Babu and satyanarain Prasad (all not examined) had come. Besides Bishun Prasad the informant (P. W, 5) his Bhabhi was aho there. Ashok Kumar also came tbere. Lallu Chamar had said later that he was coming from Samajbari and on the way the appellants were quarreling with the victim and then he went to his house. On the lip of the victim was blood mark and rope mark on the right side of the neck. From the pocket of the victim letters were recovered. One of letters was written by the victim to Rajeshs sister Rekha whom the victim used to call Puja. The victim used to go along with the three accused. The victim had love affairs with Puja so the witness and other had got suspicion that these three appellants had killed the victim somewhere and kept the dead body. In cross-examination he has said that the victim was his Bhabina (maternal nephew ). He had left study for several years and used to room about. He had come to know about love affairs with Rekha from others and ha did not make any enquiry from the victim himself. He had no knowledge about love affair with Puja and victim and he did not try to know it. The well is near his house and so is Amla tree. There was no light. The I. O. had examined him on that day. The rope was pulled by Satis Babu the brother-in-law of the victim. No mark was fouod on the tree and drew the suspicion that somebody had killed him elsewhere and had thrown him. He had given out the suspicion about killing elsewhere and throwing. There was no light. The I. O. had examined him on that day. The rope was pulled by Satis Babu the brother-in-law of the victim. No mark was fouod on the tree and drew the suspicion that somebody had killed him elsewhere and had thrown him. He had given out the suspicion about killing elsewhere and throwing. He had not given out the name of Lallu das before the police who was a driver in the Municipality. He had not said to the police that the victim used to call Rekha as Puja. There was no quarrel between him and the family of the accused. 10. Rita Sinha sister of deceased (P. W.6) has said that on 28-10-1983 at about 8 P. M. the victim came to the house and asked for the lantern which she gave to him. He declined her request for food. Ho went inside his room and bolted the same. At about 11 P. M. again she went to his room but found the room bolted from inside. Appellants were his friends and they ussd to come regularly. On 29-104983 in the morning when she was going to the bath room, she found the victim lying below Amla tree. She went there and found him 1 ing flat, and his hands were twisted and was dead and so informed P. W. S and others. The victim was brought in the room. Many people had collected A letter was recovered from his pocket written by him to Rajeshs. People were Baying that at about 7 P. M. near Samajbari appellants and victim were quarrelling and mar-pit was done and they were saying to finish the victim for ever. Rajesh used to come to her house regularly and her name is Puja. Once she had come and on her asking to stay, she (Puja) said if she would stay there would be trouble. In cross-examination she said that in 1960 she passed matric examination and married in 1962. Her elder son was aged about 14 years. The victim had left study but was preparing for matric examination privately. She used to go of and on to her husbands place at Eohak from where abe returned about four days back. The victim used to go out at about 4 P. M. and return at 8 P. M. and after taking food used to sleep. The victim had left study but was preparing for matric examination privately. She used to go of and on to her husbands place at Eohak from where abe returned about four days back. The victim used to go out at about 4 P. M. and return at 8 P. M. and after taking food used to sleep. On 28-10-1983 when he came he was nervous. She did not make any enquiry from him nor did he say anything to her. She did not take food on her asking. Her husband had not gone out and had slept after taking the food. At about 12 in the night when she woke up as the victim did not take his food. She did not go to his room and she did not suspect that he had gone out but might have gone to both room. She went to sleep as she was not well. At times the victim used to come late and used to stay with his friends and he used to say that he stayed at Rajeshs house often. She did not tell the police nor the police enquired about from her. The victim had said to her that six months before the occurrence he had stayed with his friend. She had raised alarm seeing the dead body under the Amla tree and many people had collected. She and others wore weeping. Lallu Chamar was saying that in samajbari there was quarrel and marpit with the accused. She knew him (Lallu chamar) but was no visiting terms. She has not said to the police about lallu Chamar. She had said to the police that Rekha had come for five minutes. She had seen her also earlier. She had come about 11/2 years ago and she had no talk with her. She could not say about the affair between (he victim and Rekba though she bad only heard about the same. She had not said to the police that when she asked Rekha to stay whereupon Rekba had said that there would be hungama or trouble. 11. Besides these witnesses on facts are the two other witnesses father and mother, Nishikant Sinha and Bhagwan Peyari Devi (P. Ws 3 ard 4)who had come on getting the information through Satish Kumar Sinha (P. W.9) and they had seen the dead body. A report was sent, then the police came. 11. Besides these witnesses on facts are the two other witnesses father and mother, Nishikant Sinha and Bhagwan Peyari Devi (P. Ws 3 ard 4)who had come on getting the information through Satish Kumar Sinha (P. W.9) and they had seen the dead body. A report was sent, then the police came. The police broke open the box of the victim from which some letters were recovered. A letter addressed to Rajesh was recovered from the pocket of the victim. No mark was found on the Amla tree branch. The appellants were friends of the victim and used to come at his place. His son had got love affairs with Puja. He denied the suggestion that there was strained relation with Bishundeo Pd. and his family and there was marpit on the day of occurrence. It was wrong to say that the victim was stray. He had not seen the love affair of the victim with Rekha. He did not know if his wife knew about this affair. He had given out the names of the appellants as he had heard from the family members. 12. P. W.4 the mother of the deceased and wife of P. W.3 has also said that she got information at Deori Block through her son-in-law and so she came with her husband to the place of occurrence where she found the dead body. The information was given at the police-station. The police came. From the pocket of the victim a letter was recovered and so also from his suit-case which showed that there was some affair between the deceased and Rekba who was also called Puja. Kajesh used to remain with the deceased and so he got him killed. After death they did not come even to see the dead body. Rajeshs sister had also come to her house several times In cross-examination she said that on transfer she was living in giridih and the victim was living with his Mama, No body had said that the deceased usually used to remain out throughout the night. It was not so that there was quarrel between the deceased and his maternal uncle. P. W. S used to quarrel with his wife and alio beat him. There was no quarrel with bishundeo Pd. She had become unconscious seeing the dead boy of her son. It was not so that there was quarrel between the deceased and his maternal uncle. P. W. S used to quarrel with his wife and alio beat him. There was no quarrel with bishundeo Pd. She had become unconscious seeing the dead boy of her son. She had seen Rekha in the year 1985 and Rekhas bouse is adjacent to her. She had not said to the police that the letter recovered from the pocket of tbe deceased was written to Rajesh. She had got only suspincion that the murder had been done by Rajesh. 13. Besides these statements are the statement of the Dr. S. P. Jaiswal (P. W.2) who had conducted post mortem examination and found the following injuries on the person of the deceased : "2. There was oblique ligature mark about 1/2 with present on the upper part of the neck in front sides going along with the mandtibular bends. It was defficient on the back side of the neck. Signs of dribling of salira present on the right side of mouth but mark of knot was not present. The lease of the ligature mark was not parchment like and sides of groves was not echhymosied tractial. Wings were not bressed. The mucosa of trachis was not echymosed. Conjectiva was not haemorrhagio. Brain vessels were congested. 3. On dissection of chest and abdomen I found lunge and spleen were congested. Lever and kidney were balor. Both the cavity of the heart were empty. Bladder was empty. In my opinion it may be a case of hanging as opined by police in inquest report. Time elapsed since death about sixteen hours at the time of examination. This P. M. report has been prepared and signed by me. I did not find salora on the cheek and chin of the body which is necessary in case of homicidal hanging. Modi Medical Jurisprudence is an authority on this point. " 14. The remains the statements of the investigating officers, namely, lakshmi Narain Gupta (P. W.8) who has done most of the investigation. He after registration of the first information report went to the place of occurrence ard found the dead body for which he prepared inquest report and sent the same for post-mortem examination. He had also sent the rope. The remains the statements of the investigating officers, namely, lakshmi Narain Gupta (P. W.8) who has done most of the investigation. He after registration of the first information report went to the place of occurrence ard found the dead body for which he prepared inquest report and sent the same for post-mortem examination. He had also sent the rope. He got up the tree and did not find any mark of hanging of the rope on the branches of Amla tree. He examined the witnesses. The first information report was against unkown During the course of investigation complicity of the accused came to light and so he arrested the appellant. 15. P. W.9 has submitted charge-sheet against the appellants after taking over charge from P. W.8. 16. From the consideration of these evidence it appears that (4) there was love affair between the deceaied and Puja Rekha for which P. Ws.1, 3, 4 and 5 have deposed. Further there was suspicion about the accused and for which P, Ws.3,4 and others have said. On the question of last seen on 28-10-1983 and quarrel with the deceased the statement cf only lallu Chamar who has not been examined, although he was driver in the Municipality. There was no enmity between the appellants and the deceasad which appears from the statements of P. Ws.1.3, 5 and 9. Two letters have been recovered (Exts.1 and 5 ). Ext.1, being recovered from the pocket of the victim for which P. Ws.1, 3 and 4 have stated, Letter of the deceased to Puja (Ext.5) has been mentioned by P. W.5. 17. From the evidence, even if the two letters may be believed to have been written by the victim to Rajesh and Puja, it may establish only love affairs in between Puja and victim. So far letter from victim to Rajesh may show that it was a resentment by Rajesh against affairs of Puja. But it cannot be established that it was Rajesh who killed the victim, unless some other evideuce establishes. 18. So far letter from victim to Rajesh may show that it was a resentment by Rajesh against affairs of Puja. But it cannot be established that it was Rajesh who killed the victim, unless some other evideuce establishes. 18. As regards the quarrel between the deceased and the three accused in Samajbari and threat by the appellants to do away the only witness to this is Lallu Chamar who is said to have given out to other persons including the witnesses, Lallu Chamar has not been examined though he was said to be alive and working as driver at the relevant time. This non-examination of Lallu Chamar amounts to withholding of material witness. All other witnesses have expressessed suspicion on the basis of the version given by Lallu Chamar. In view of the aforesaid circumstances non-examination of Lallu Chamar, the question of threat and participation of the appellants become doubtful. The other witnesses, namely, P. Ws.3, 4 and 6 said about the appellants only on the basis of version of Lallu Chamar. 19. In the result, the case against the appellants becomes doubtful and so they are entitled to the benefit of doubt. The appeal is, therefore, allowed and the order of conviction and sentence of the appellants are set aside, and they are on bail, and so they are discharged from the liability of bailbonds. Appeal allowed.