Judgment : S. J. MUKHOPADHAYA. J. ( 1 ) THIS appeal has been preferred by the appellant-Samapta Palit against the judgment, order of conviction and sentence dated 15/3/1995 passed by learned Second Additional Sessions Judge, Jamshedpur in Sessions Trial No. 17/93 whereby two accused including the appellant have been convicted. The appellant has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and also to undergo rigorous imprisonment for seven years under Section 201 on the Indian Penal Code but both sentences to run concurrently. ( 2 ) IN the present case, Rabindar Prasad, who was the Officer-in-Charge of Potka Police Station, is the informant, who wrote and signed fardbeyan on 31/5/1992 at about 6. 30. p. m. The case of the prosecution as recorded in self contained statement by Officer-in-charge is that on 31/5/1992 at about 2. 30. p. m. he received an intimation that the dead body of a lady was lying in a burnt state in the kitchen of Samapta Palit the husband of the lady. The husband, Samapta Palit (appellant) and in laws of the lady were not telling the cause of death. Receiving such information, he rushed to the place of occurrence, the house of appellant-Samapta Palit at Village Haldi Pokhar, Palittola where a crowd had already assembled. On entry to the kitchen the Officer-in-Charge found the dead body of Smt. Sukla Palit (deceased ). She was wearing cotton clothes partly burnt and stench of Kerosene Oil was emanating from the dead body. There were some blood drops from the mouth and nose. The informant alleged that he could not find any trace of evidence to believe that the deceased succumbed to burnt injury due to accidental fire and she tried to save herself or any person tried to save her. He also found the pitcher and a water tank kept inside and kitchen in upturned state from which lot of water spilled on the floor. There was no boils on the body of the deceased to suppose that the water was poured on the burning body. Further case of the prosecution is that the informant found a Dhibri (Lamp) and Kerosene Stove in the kitchen kept in normal state and other kitchen wares and articles also kept in normal manner. There was no boils on the body of the deceased to suppose that the water was poured on the burning body. Further case of the prosecution is that the informant found a Dhibri (Lamp) and Kerosene Stove in the kitchen kept in normal state and other kitchen wares and articles also kept in normal manner. No part of burnt cloth was found on the floor nor did any of the neighbourers heard the screams of the deceased of alarm for help. Neither the husband Samapta Palit, nor in laws asked for any help from the neighbourers and the in laws could not tell the reasons for such incident. ( 3 ) THE mother-in-law, Chhabi Palit told the informant that she found the deceased lying in the kitchen in a burnt state when she came back from her Kitchen garden at about 6. 30 a. m. She located the dead body of deceased in the, Kitchen. The deceased was quit all right at about 6. 00 a. m. when she (Chhabi palit) was going towards the Kitchen garden for some work. At that time, the deceased had seen off her (deceased) husband (appellant herein ). While he was going to his work place at Hata after taking breakfast. The mother-in-law of the deceased (Chhabi palit) further told the informant that she raised alarm having seen the dead body of the deceased wherein after neighbourers assembled in her house. ( 4 ) THE husband of the deceased (appellant) told the informant that he had seen the deceased in a normal state when he (appellant) left for village Hata for work at about 6. 00 a. m. after taking breakfast. He got information about the death of his wife at about 7. 00 a. m. and rushed back home. He (appellant) further told the informant that he lost his balance having seen the dead body of the wife so upturned the water containers inside the Kitchen which was the reason that the water was spilled on the floor. ( 5 ) FURTHER case of the informant is that when he interrogated the neighbourers, they could not say anything in support of the aforesaid statement of the accused that the deceased was alive at 6. ( 5 ) FURTHER case of the informant is that when he interrogated the neighbourers, they could not say anything in support of the aforesaid statement of the accused that the deceased was alive at 6. 00 a. m. at the time the appellant (Samapta Palit) left for village Hata, nor the neighbourers gave any statement that they saw flame coming out from the clothes of the deceased when they arrived at the alarm raised by Chhabi Palit. No evidence as found at the spot that any of them tried to extinguish the fire. The in laws of the deceased even failed to give any plausible reason of burnt though they reside in the same house nor could give any satisfactory explanation for not informing the police. ( 6 ) ON the basis of self statement of Rabindra Prasad. Officer-in-Charge of Potka Police Station (PW 11), a Potka P. S. Case No. 44/92 was instituted. The informant himself investigated the case and submitted charge-sheet against two accused, namely, Samapta Palit (appellant) and Jaideo Palit brother of the appellant. Though the parents i. e. Bibhuti Bhushan Palit (father) and Chhabi Palit (mother) were named as accused in the FIR but they were not sent for trial. After taking cognizance under Sections 302/34 and 201/34 of the Indian Penal Code, the case was committed to the Court of sessions for trial. ( 7 ) BEFORE deciding the issue as to whether the prosecution was able to bring home the charges against the appellant beyond all reasonable doubt or not and before discussion of the evidences it is desirable to record short submissions as were made by the Counsel for the appellant. ( 8 ) ACCORDING to Counsel for the appellant this is a case of no evidence against the accusedappellant but the trial Court without any basis convicted the appellant on mere presumption and surmises. It was also submitted that though the actual informant was one Assistant Sub-Inspector. S. Baitha but Rabindra Prasad (PW 11) Officer-in-Charge of Potka Police Station become the complainant (informant) and he himself investigated the case, which prejudiced the defence (appellant ). The learned trial Court while put question to the accused after examination of the prosecution witnesses had not explained the circumstances and the evidence brought against him as required under Section 313 of the Cr. PC. The learned trial Court while put question to the accused after examination of the prosecution witnesses had not explained the circumstances and the evidence brought against him as required under Section 313 of the Cr. PC. ( 9 ) ALL together 11 witnesses were examined on behalf of prosecution and two on of defence. Tapan Kumar Palit (PW 2) Benu Palit (PW 6) and Ajit Seth (PW 8), while tendered. Smt. Pun Ghosh (PW 3), neighbour, Tunu Palit (PW 4), neighbour, Kajal Sarkar (PW 5 ). neighbour, Rabindra Nath Bhandari (PW 7) father of the deceased (Suklapalit) all of them were declared hostile witnesses. Dr. Y. Nath (PW 10) did Post mortem on the body of Sukla Pal it (Deceased) on 1/6/1992, rest of the witnesses i. e. Shankar Sharma (PW 1 ). Neighbour, Sudhir Modak (PW 9) and Rabindra Prasad (PW 11), the informant Officer-in-Charge-cum-Investigation Officer were neither eye-witnesses nor hearsay witnesses. Thus, it is to be seen whether the prosecution could make out a case of circumstantial evidence or not. ( 10 ) SHANKAR Sharma (PW 1) is one of the witnesses not tendered nor declared hostile by the Court. He stated that he had gone to the house of Bibhuti Bhushan Palit (Father-in-law of the deceased) on hearing hulla and seen the dead body of wife of Samapta Palit. When he asked the father of Samapta Palit as to how Sukla Palit (deceased) died, the father of Samapta Palit replied that he was sleeping in the night so he was not knowing as to how and when she died. In his cross-examination, he (PW 1) stated that the dead body of Sukla Palit was lying in the Kitchen and further stated that J aideo Palit was living separately having separate mess much prior to the incidence. ( 11 ) SIMILARLY, Sudhir Modak (PW 9), Chawkidu:t 2/49 is the other witness not tendered, nor declared hostile by the Court. He (PW 9) stated that about 1-1/2 years back he could come to know of the occurrence. In the morning, he had gone to the house of Sukla Palit (deceased) and seen the dead body lying in the Kitchen in burnt condition. He asked the in laws of Sukla Palit and the husband (appellant-herein) but none of them said anything. In his cross-examination, he (PW 9) also stated that Jaideo Palit was living separately having separate mess. In the morning, he had gone to the house of Sukla Palit (deceased) and seen the dead body lying in the Kitchen in burnt condition. He asked the in laws of Sukla Palit and the husband (appellant-herein) but none of them said anything. In his cross-examination, he (PW 9) also stated that Jaideo Palit was living separately having separate mess. ( 12 ) DR. Y. Nath (PW 10) is the doctor who conducted post mortem on the dead body of the deceased. In his examination, he stated that there were some burn pieces of clothes on the dead body but the body was naked, the tongue was pressed between teeth, blood and mucous were come out from nostrils and her body and clothing were transmitting the smell of Kerosene oil. According to him all the injuries including burn injuries were ante mortem. Death was due to asphyxia, hand injury and burn shocks. The internal injury of head was the result of a hit by hard and blunt substance and the neck injury was due to pressure over the neck. The time elapsed since death was stated to be within 10-30 hours from the time of post mortem examination. ( 13 ) THE other witnesses, Rabindra Prasad (PW 11), the then Officer-in-Charge of Potka Police Station was the informant and 1. 0. who corroborated his statement as was made in the FIR. He stated that on 31/5/1992 when he was the Officer-in-Charge of the Potka, Police Station he (PW 11) got an information at about 2. 10 p. m. from S. Baitha. A. S. I. that in the Haldipokhar village, the dead body of the wife of Samapta Palit was lying in the Kitchen of his house in a burnt state. Further oral testimony was made by him in support of his self statement as was made in the FIR that during the inspection of the place of occurrence he found a rack of utensils only 2 ft. away from the dead body in intact condition The cobwebs were also found in intact condition. The said witness proved the Inquest Report (Exhibit 2) his self statement (Exhibit 30. formal FIR (Exhibit 4) and stated that he recorded the statement of all prosecution witnesses including those declared hostile. In cross-examination, the Investigation Officer denied that he made Jaideo Palit an accused merely on the basis of the supervision note. The said witness proved the Inquest Report (Exhibit 2) his self statement (Exhibit 30. formal FIR (Exhibit 4) and stated that he recorded the statement of all prosecution witnesses including those declared hostile. In cross-examination, the Investigation Officer denied that he made Jaideo Palit an accused merely on the basis of the supervision note. ( 14 ) FROM the aforesaid evidences on record though one may raise doubt but cannot derive any opinion that the appellant killed the wife. Sukla Palit. None of the witnesses heard anything against the appellant in committing murder of the deceased. On the other hand Smt. Pun Ghosh (PW 3), Tunu Palit (PW 4 ). Kajal Sarkar (PW 5) all the neighbourers and declared hostile stated that they never heard anything against the appellant-Samapta Palit, nor heard anything relating to strained relation between them. In cross-examination PW 5 stated that Samapta Palit and Smt. Sukla Palit had good relation and were leading good conjugal life. ( 15 ) ONE of the most important witness was Rabindra Nath Bhandari (PW 7), father of the deceased i. e. father-in-law of the appellant who was declared hostile because he stated that Jaideo Palit gave him information of death in the morning on 31/5/1992 and supported his son-in-law, accused. He specifically stated that the son-in-law (appellant) had a good relation ship with the daughter (deceased) and the son-in-law never demanded any dowry, nor ever tortured his daughter (deceased ). He reiterated such statement during cross-examination made by prosecution and made statement in favour of in-laws. ( 16 ) THUS, from the evidences on record as discussed above it will be evident that the prosecution failed to bring on record any evidence either direct or circumstantial to prove charge against the appellant much less beyond all reasonable doubt. Though the learned Additional Sessions Judge discussed the evidences but on mere presumption and surmises, held the charge proved against the appellant which is not permissible. ( 17 ) IN view of aforesaid finding, it is not necessary to discuss or decide the other issue as was raised by the Counsel for the appellant There being no evidence against the appellant he is acquitted from the charges. ( 18 ) IN the result, the appeal is allowed. The judgment, order of conviction and sentence dated 15/3/1995 passed by the learned Additional Sessions Judge. ( 18 ) IN the result, the appeal is allowed. The judgment, order of conviction and sentence dated 15/3/1995 passed by the learned Additional Sessions Judge. Jamshedpur in Sessions Trial No. 17/93 is hereby set aside. ( 19 ) SINCE the appellant, namely Samapta Palit is on bail he is discharged from the liability of bail bond. Appeal allowed. --- *** --- .