Judgment M.L.Visa, J. 1. All these three appeals have been heard together and are being disposed of by this common judgment because all these appeals are directed against the judgment and order dated 8.7.1986 passed by Sessions Judge, Sitamarhi in Sessions Trial No. 200/84 convicting and sentencing appellant Teetari Devi to undergo R.I. for a period of ten years under Section 364/109 of the Indian Penal Code (in short, IPC) and the remaining appellants to undergo imprisonment for life under Section 364, IPC. Appellants Satya Narayan Nayak @ Kirani and Shukhalal Sah have been further convicted and sentenced to undergo imprisonment for life under Section 302, IPC and R.l. for five years under Section 201, IPC. The different sentences passed against these two appellants have been ordered to run concurrently. 2. The case of prosecution in short is that on 21.2.1984 at about 6.00 p.m. informant Kamaldeo Sah (PW 19), the then dafadar of Beat No.1 went to Bela Police Station within the jurisdiction of District Sitamarhi and lodged the FIR (Ext. 8) stating therein that on the same day at about 2.00 p.m. he heard rumour that a headless body was lying in Bhentpur Sareh and murder had been committed by cutting the neck of that man in the previous night. On this information he along with chawkidar Makai Sah (not examined), chawkidar Bisheshwar (not examined) and other villagers went to Bhentpur Sareh were he found the dead-body of a man lying in the field of one Charitar Rai. The head of the body was missing as it was cut and removed and the body was headless. The informant left both the chawkidars there and he himself proceeded to police station. In the way he came to know that blood stains had been found at 2-3 places near the pond of one Nemi Sah of village Srirampur and blood was also found in the ditch near the pond but attempt had been made to remove the signs of blood stains there by cutting the soil and mixing it with the mud. The informant then went to the aforesaid pond of Nemi Sah and found blood stains there. Thereafter informant went to police station and lodged the FIR. The informant then went to the aforesaid pond of Nemi Sah and found blood stains there. Thereafter informant went to police station and lodged the FIR. A case under Section 302/201, IPC was registered against unknown and after investigation charge-sheet against appellants Satya Narayan Nayak, Sukhlal Sah, Tetari Devi, Ramprit Sah, who is dead now, and co-accused Kirit Lal Sah (since acquitted) was submitted. After taking cognizance the case was committed to the Court of Sessions where charges under Sections 302 and 201, IPC and a further charge under Section 364/109. IPC against appellant Tetari Devi and charge under Section 364, IPC against appellants Sukhlal Sah, Ramprit Sah and Satya Narayan Nayak were framed. After recording statements of two witnesses appellants Basudeo Mahaton, Kirit Rai, Chulhai Mahato and Suleman Mian @ Fasadi Mian were also put on trial under Section 319 of the Code of Criminal Procedure after framing charges under Section 364, IPC against them. The case of appellants is denial of charges against them and their false implication in this case. The plea of alibi has been taken on behalf of appellant Satya Narayan Nayak. Two witnesses have been examined on behalf of appellants. After trial the Court below acquitted co-accused Kirit Lal Sah but so far the case of appellants is concerned, they all were found guilty and they have been convicted and sentenced as indicated above. 3. In order to prove its case the prosecution has examined 21 witnesses, Kamaldeo Sah (PW 19) is the informant. Chaudhary Sah (PW 11) and Yogendra Sah (PW 13) have proved their signatures (Ext. 7, 7/1 and 7/3) on seizure list prepared by police when it has seized blood stained earth and some articles. PW 11 has said that police recovered and seized blood stained earth from Bhentpur Sareh; a rusted blood stained Khurpi from the potato field of appellant Sukhlal Sah but. about pay-in-slip of a Bank, a pair of "chapal" and a shirt he has said that these articles were shown to him by police at school and he put his signature on seizure list under the orders of police. Both these witnesses have been declared hostile by the prosecution. Ram Naresh Sah (PW 14) has said that on 20.2.1984 at 5.00 p.m. he had seen the son-in-law of appellant Sukhlal Sail in a bus but he did not identify any other passenger in the bus. Both these witnesses have been declared hostile by the prosecution. Ram Naresh Sah (PW 14) has said that on 20.2.1984 at 5.00 p.m. he had seen the son-in-law of appellant Sukhlal Sail in a bus but he did not identify any other passenger in the bus. He has also been declared hostile Ram Talewar Rai (PW 20) has also been declared hostile by prosecution because in his evidence he has not stated any material fact. Sidheshwar Raj (PW 12), Bachcha Prasad Sinha (PW 17), Durga Prasad (PW 18) and Jitendra Jha (PW 21) are formal witnesses who have proved signature (Ext. 7/2) of PW 12 on the seizure list, plaint (Ext. 11) of Partition Suit No. 3/84, a sale-deed (Ext. 12) executed by Ram Tej Sah @ Kamal Sah whose headless body, as alleged by prosecution, who found lying in a field by informant of this case and inquest report (Ext. 13/1). Dr Dharmadeo (PW 16) is the doctor who had conducted post-mortem on the dead-body recovered in this case. Birendra Mohan Kumar (PW 15) is the I.O. Mahendra Paswan (PW 7), the then chawkidar had gone to Bhentpur Sareh where he had seen the dead-body and identified the dead-body as of Ram Tej Sah. Ram Bilash Sah (PW 1), Kedar Sah (PW 2), Kewalwati Devi (PW 9) and Ram Shankar Prasad (PW 10) had seen Ram Tej Sah going with appellants from his village. Suresh Prasad (PW3) and Lakshmi Prasad (PW 8) had seen Ram Tej Sah with appellants at Parsa Lodge at Sitamarhi. Kishori Sah (PW 6) had seen Ram Tej Sah with appellants at Parwaha More Bus Stand. Kishori Lal (PW 4) who is bahnoi of Ram Tej Sah is a hearsay witness who was told by his brother Suresh Prasad (PW 3) that on 20.2.1984 Ram Tej Sah had come to him at Parsa along with appellants. Ram Sagar Prasad (PW 5) is the brother of Ram Tej Sah and has said that on 19.2.1984 appellants Sukhlal Sah and Satya Narayan Nayak along with Ramprit Sah came to the village and requested his mother to send Ram Tej Sah for vidagiri of his wife and then mother of Ram TeJ Sah permitted his son to go with him to village Taliyahi via Sitamarhi on next day. 4. There is no eye-witness on the point of commission of murder in this case. 4. There is no eye-witness on the point of commission of murder in this case. The entire case of prosecution is based on circumstantial evidence. It is the case of prosecution that a headless body was found lying in Bhentpur Sareh. Kamaldeo Sah (PW 19), the informant has said that he had gone to Bhentpur Sareh along with two chow-kidars and other villagers where he found a headless body lying in the field of wheat and the upper portion from the neck of the body was missing and he then proceeding to police station and by that time the dead-body had not been identified. The case of prosecution is that this dead- body was of one Ram Tej Sah, who happened to be the husband of appellant Tetari Devi and son-in-law of appellant Sukhlal Sah. The first question which arises for consideration is whether the dead-body recovered in this case was properly identified or not. On the point of identification of the dead-body we find that Kedar Sah (PW 2), chowkidar Mahendra Paswan (PW 7) have deposed that they identified the headless dead-body as the body of Ram Tej Sah. Out of these witnesses Kewalwati Devi (PW 9) is the mother and PW 2 and PW 10 are brothers of this Ram Tej Sah whereas PW 7 at the relevant time was chawkidar. Kewalwati Devi (PW 9) has said that Ram Tej Sah was her youngest son and to Tuesday she heard rumour that a headless body was lying in a field. She then called chowkidar and sent her two sons on the same day to that field and on the next day she went to Sitamarhi and identified dead-body of her son Ram Tej Sah in morgue house. The FIR was lodged on 21.2.1984 which was Tuesday when the informant had seen the dead-body. So according to evidence of Kewalwati Devi she on 22.2.1984 went to Sitamarhi where she identified the dead-body as of her son Ram Teh Sah whereas post-mortem examination report (Ext. 10) shows that the dead-body was received in the morgue house at 7.00 a.m. on 23.2.1984. In this view of the matter her evidence that she identified the dead-body in the morgue house on 22.2.1984 is not believable. 10) shows that the dead-body was received in the morgue house at 7.00 a.m. on 23.2.1984. In this view of the matter her evidence that she identified the dead-body in the morgue house on 22.2.1984 is not believable. The Court below has taken note of this fact but it has believed the evidence of this witness on the point of identification by stating that the date on which she identified the dead-body as mentioned by her is a small contradiction which may be due to lapse of memory. She has not said anything that when on receipt of information of recovery of a headless body in a field she sent her two sons along with chowkidar to that place what information they gave her on their return to the house Kedar Sah (PW2) and Ram Shankar Prasad (PW 10) who are said to be the brothers of Ram Tej Sah have said that on 21.2.1984 they heard in village that a dead-body was lying in a field in Bhentpur Sareh. PW 2 has said that he heard this information at about 4.00 pm. whereas PW 10 has said that he heard this information at 12.00 Oclock in the noon at bus stand and he then came to his house and gave this information to his mother and thereafter he along with PW 2 and PW 7 went to Bhentpur Sareh. They both have said that they identified the dead-body as of their brother Ram Tej Sah. About the mode of identification they have said that they identified the dead-body by a ring in finger, scar mark un the right leg and a jantar (Talisman) tied around the waist. Mahesh Paswan (PW 7) has also said that he identified the dead-body in the aforesaid manner. He has further said that before his reaching there the police had already reached the place and he and PW 2 and PW 10 remained there for 2-3 hours and thereafter they returned from there. Birendra Mohan Kumar (PW 15) the I.O. of this case has said that on 21.2.1984 after lodging the FIR by the informant he took up the investigation and proceeded for the place at 6.15 p.m. and reached Bhentpur Sareh at 9.00 p.m. and thereafter he prepared inquest report. The inquest report is marked as Ext. Birendra Mohan Kumar (PW 15) the I.O. of this case has said that on 21.2.1984 after lodging the FIR by the informant he took up the investigation and proceeded for the place at 6.15 p.m. and reached Bhentpur Sareh at 9.00 p.m. and thereafter he prepared inquest report. The inquest report is marked as Ext. 13/1 and it shows that it was prepared on 21.2.1984 at 9.00 p.m. In this report also the name of deceased has not been mentioned and it is mentioned that dead- body of an unknown man was found. If PW 2, PW 7 and PW 10 had gone to place of occurrence in the afternoon of 21.2.1984 and PW 2and PW 10 had identified the dead-body of the deceased as of their brother Ram Tej Sah, this information must have been given to I.O. according to whom these witnesses were present at the place of occurrence and had identified the dead-body of their brother. But the absence of the name of deceased in the inquest report which was prepared on 21.2.1984 at 9.00 p.m. sh6ws that till that time the dead-body was not identified and in view of this fact the evidence of PW 2, PW 7 and PW 10 that they identified the dead-body in the afternoon on 21.2.1984 does not appear to be convincing. 5. Ram Bilash Sah (PW 1), Kedar Sah (PW 2), Kewlawati Devi (PW 9) and Ram Shankar Prasad (PW 10) all have said that Ram Tej Sah on 20.2.1984 was found going to his sasural along with appellants Sukhlal Sah, Ramprit Sah, Satya Narayan Nayak, Chulhai Mahato, Basudeo Mahton, Kirit Rai and Sulman Mian @ Fasadi Mian for bringing his wife appellant Tetari Devi who had gone to her naihar two months prior to it. Suresh Prasad (PW 3) and Lakshmi Prasad (PW8) have said that on 20.2.1984 at about 10.00, 10.30 a.m. Ram Tej Sah along with aforesaid appellants had come to Parsa Lodge at Sitamarhi and on that day Ram Tej Sah purchased a tape recorder from a shop and deposited a sum of Rs. 7,000/- in Allahabad Bank at Sitamarhi and thereafter Ram Tej Sah along with aforesaid appellants boarded a bus at Sitamarhi at about 5.00 p.m. for going to Bela. 7,000/- in Allahabad Bank at Sitamarhi and thereafter Ram Tej Sah along with aforesaid appellants boarded a bus at Sitamarhi at about 5.00 p.m. for going to Bela. Kishori Sah (PW 6) has said that he had seen Ram Tej Sah coming out from a bus along with aforesaid appellants at Parwaha Board Bus Stand and when he enquired from Ram Tej Sah where he was going, he replied that he was going to village Teliyahi for bringing his wife. By bringing this evidence on record the prosecution wants to prove that Ram Tej Sah was last seen with the aforesaid appellants and thereafter he was not found and a headless body was recovered in Bhentpur Sareh which was identified by brothers and mother of Ram Tej Sah as a Ram Tej Sah. About the motive of committing murder of Ram Tej Sah by the appellants the case of prosecution is that appellants Satya Narayan Nayak was having illicit relationship with Tetari Devi, the wife of Ram Tej Sah. Ram Bilash Sah (PW 1) in his evidence has said that Ram Tej Sah was married to appellant Tetari Devi who is the daughter of appellant Sukhlal Sah. There is no dispute that appellant Tetari Devi is the wife of Ram Tej Sah and daughter of appellant Sukhlal Sah. The evidence of PW 1, PW 2, PW 5 and PW 9 is that appellant Satya Narayan Nayak was having illicit relationship with appellant Tetari Devi and a panchayatt was held for this matter and then appellant Satya Narayan Nayak executed a bond (Ext. 1) giving an undertaking that he will not have any further relationship with Tetari Devi and Ram Tej Sah also executed a bond (Ext. 1/1). Their evidence further discloses that Ram Tej Sah on hearing the complaint of villagers about the relationship of his wife with appellant Satya Narayan Nayak once jumped from roof of his house in order to commit suicide and received an injury on his right leg by an iron rod leaving a permanent mark. It further discloses that on one occasion when appellant Tetari Devi left the house of Ram Tej Sah and went to the village of appellant Sukhlal Sah for bringing his wife with him appellant Sukhlal Sah compelled him to execute a bond for Rs. 13.000/-. It further discloses that on one occasion when appellant Tetari Devi left the house of Ram Tej Sah and went to the village of appellant Sukhlal Sah for bringing his wife with him appellant Sukhlal Sah compelled him to execute a bond for Rs. 13.000/-. Their further evidence is that when the headless body was found on 21.2.1984 in Bhentpur Sareh appellant Tetari Devi was in the house of her father appellant Sukhlal Sah. 6. The case of prosecution is that Ram Tej Sah had purchased a tape recorder in Sitamarhi Bazar and deposited a sum of Rs. 7000/- in a Bank at Sitamarhi on 20.2.1984. Birendra Mohan Kumar (PW 15), the I.O. in his evidence has seated that during the course of search of house of appellant Sukhlal Sah on 21.2.1984 he recovered apay-in-slip (Ext. 14) showing deposit of a sum of Rs. 7,000/- in Allahabad Bank, Sitamarhi on 20.2.1984 by Ram Tej Sah, a piece of woolen thread from the bed of appellant Tetari Devi and a khurpi (Material Ext. IV) containing stains like blood from potato field situated in front of the baithaka of appellant Sukhlal Sah. Kedar Sah (PW 2) in his evidence has said that after the occurrence he received a receipt along with a guarantee card of purchase of tape recorder and he handed over receipt (Ext. 4) and guarantee card (Ext. 5). to police. The further case of prosecution is that the woolen thread which was recovered from the bed of appellant Tetari Devi in the house of appellant Sukhlal Sah and the thread tied with jantar round the waist of the recovered dead-body were sent to Forensic Science Laboratory for examination and the report from Forensic Science Laboratory (Ext. 15) is that both the threads were of same origin. The Court below in para 17 of its judgment has observed that there is no circumstance to connect appellant Tetari Devi with actual murder of her husband Ram Tej Sah because there is no evidence to show that Ram Tej Sah was brought to the house of her father Sukhlal Sah where she was at the relevant time and then her husband was done to death in the house. From the judgment of Court below we find that the Court below has inferred that appellant Satya Narayan Nayak fanned the heart feelings of appellant Tetari Devi and her father and brothers to do away with the life of Ram Tej Sah and they very shrewdly managed to bring Ram Tej Sah in their company to Sitamarhi and thereafter they abducted Ram Tej Sah and took him to a field where they committed his murder. We fail to understand how the Court below has given much importance to the recovery of pay-in-slip (Ext. 14) and a thread from the bed of appellant Tetari Devi in the house of her father, appellant Sukhlal Sah. When it has observed that there is no evidence that Ram Tej Sah was brought to the house of appellant Sukhlal Sah, the recovery of aforesaid articles from there is strong circumstance that Ram Tej Sah had reached the house of his father-in-law appellant Sukhlal Sah otherwise the pay-in-slip and thread would not have been found in the house of appellant Sukhlal Sah because ,it does not come to reason that the appellants after committing murder of Ram Tej Sah would search his pocket and take out the pay-in-slip and a piece of thread to the house of appellant Sukhlal Sah and will keep it on the bed of appellant Tetari Devi so that it may be afterwards recovered by the police from there. There is no evidence that after reaching the house of appellant Sukhlal Sah where Ram Tej Sah thereafter went. If Ram Tej Sah was found going to his sasural for bringing his wife along with appellants, who included his father-in-law and brothers-in-law, there is nothing unusual in it although the evidence of I.O. that witnesses, namely, PW 1 and PW 2 had not in their earlier statement stated that they had seen Raj Tej Sah going with appellants, PW 3 in his earlier statement had not named appellant Basudeo Mahto, Chulhai Mahto, Kirit Rai and Suleman with appellants Sukhlal, Satya Narayan Nayak and Ramprit Sah who were with deceased Ram Tej Sah. PW 9 is her earlier statements had not named any person except appellants Satya Narayan Nayak and Ramprit Sah with whom deceased left the village. PW 9 is her earlier statements had not named any person except appellants Satya Narayan Nayak and Ramprit Sah with whom deceased left the village. PW 3 in his earlier statement had not stated that on 20.2.1984 Ram Tej Sah came to Parsa Lodge and PW 6 in his earlier statement had not stated this his brother (PW 3) had told hirn about the visit of Ram Tej Sah on 20.2.1984 at Parsa Lodge makes the case of prosecution quite doubtful that Ram Tej Sah was last seen with the appellants, the only circumstantial evidence on which the prosecution was resting its case. 7. Considering the entire evidence on recora we find that except the evidence, which itself is shrouded with serious doubts, that on 20.2.1984 Ram Tej Sah was seen going with appellants including his father-in-law and brothers-in-law to his sasural for bringing his wife no other evidence against the appellants has been brought on record. This circumstance is not sufficient to come to a conclusion that the appellants committed the murder of Ram Tej Sah. As stated earlier, there is no convincing evidence on record to show that the dead-body recovered in this case was of Ram Tej Sah. But for the sake of argument if it is considered to be the body of Ram Tej Sah and considering the evidence of Dr. Dharmadeo (PW 16} who held the post- mortem examination on the recovered dead-body that the death was homicidal even then we find that the prosecution has not been able to prove its case against the appellants for abducting Ram Tej Sah and thereafter committing his murder. 8. The judgment and order of Court below convicting and sentencing the appellants cannot be upheld on the basis of such type of weak and insufficient evidence in the present case based only on circumstantial evidence. In the result, all these appeals are allowed and judgment and order ,of Court below convicting and sentencing the appellants is hereby set aside. Bail bonds of appellants are cancelled arid they are discharged from the liability of their bail bonds. R.N.Prasad, J. 9 I agree.