Judgment : LAKSHMAN URAON, J. ( 1 ) SOLE appellant Anand Sao has preferred this appeal against the order of conviction and sentence dated 13-12-1989 passed in Sessions Trial no. 108 of 1988 (G. R. No. 179 of 1988) by shri L. A. K. Sinha, learned 2nd Additional sessions Judge. Gumla whereby and where-under this appellant waa convicted under section 302 IPC and sentenced to undergo imprisonment for life. ( 2 ) INFORMANT Nandwa Sao (PW. 10), brother of this appellant and son of deceased puran Sao, has alleged in the FIR that on 7-4-1988 at 15 hours at village Bharda, District Gumla, his brother Anand Sao (appellant) was going to irrigate his garden having spade in his hand- Their father Puran sao (deceased) demanded his share of one ox to cultivate his share of land. At this moment, Anand Sao gave a spade blow on the forehead of his father Puran Sao. Puran sao on being injured fell down and died instantaneously. Informants mother Devni Sahuain (PW. 1), his wife Parvati Devi (PW. 11)and Radha Devi (PW. 6) have seen the alleged assault. On hearing alarm. Baleshwar Sahu (PW. 2), Rijhan Sao (PW. 4) and other villagers went there and also saw the alleged occurrence. After causing murder, the appellant fled away taking spade in his hand. Appellant was living separately from his father 3-4 months prior to the alleged occurrence who was quarrelling with his father occasionally. The reason of the alleged murder was the quarrel in between father and son. ( 3 ) THE prosecution produced 13 witnesses to substantiate the charge levelled against the appellant under Section 302 IPC. PW. 1 Devni Sahuain is the wife of deceased puran Sao. Although she was Inside her house when her husband Puran Sao was assaulted outside her house, she did not see the assailant. When she came out, she did not see anyone there, rather she saw her husband fallen down on the rock who had died. She has been declared hostile by the prosecution. PW. 2 Baleshwar Sahu is the witness of inquest report and seizure of bloodstained soil on which he signed {exts. 1, ) and also singed by another witness (Exts. 1/1 and 1/3 ). PW. 3 Satichand Sahu is the hearsay witness who was informed by PW. 1 Devni Sahuain that her husband was murdered by Nanhak @ Anand Sao (appellant ). 2 Baleshwar Sahu is the witness of inquest report and seizure of bloodstained soil on which he signed {exts. 1, ) and also singed by another witness (Exts. 1/1 and 1/3 ). PW. 3 Satichand Sahu is the hearsay witness who was informed by PW. 1 Devni Sahuain that her husband was murdered by Nanhak @ Anand Sao (appellant ). As she is a hostile witness and she did not see anyone assaulting and has not informed anyone else about the name of the assailant, hence the evidence of this PW. 3 is also inadmissible. PW. 4 Rijhari Sao has deposed that wife of the deceased, namely devni Sahuain (PW. 1), did not inform about the assailant. Hence, he was declared hostile by the prosecution. PW. 5 Ishwar Sahu has also deposed that no one disclosed name of the assailant and is a hostile witness. PW. 6 Radha Devi did not see any assailant and is a hostile witness. PW. 7 Ramdhari Sao has not gone to the place of occurrence and is a hostile witness. PW. 8 Bahadur Sao is a tendered witness. PW. 9 Lallu Sao is the witness of the seizure-list in respect of seized bloodstained soil on which he signed ( Ext. 1/4) and another witness PW. 2 Baleshwar sahu signed on it (Ext. 1/5 ). ( 4 ) THUS, all the village witnesses including the wife of the deceased have not supported the prosecution case who are either hostile or tendered witnesses or seizure list witness or inquest witness. The only witnesses who have supported the prosecution case are PW. 10 Nandwa Sao and his wife pw. 11 Parvati Devi who have claimed themselves to be the eyewitnesses. PW. 12 Ram kishore Singh is the I. O. and PW. 13 Dr. S. N, Lai conducted autopsy on the dead body and prepared post mortem report (Ext. 5) in his pen and signature. ( 5 ) THE learned 2nd Additional Sessions judge, Gumla relied the evidence of PW. 10 and PW. 11 and opined that their ocular evidence got corroboration by the medical evidence of PW. 13 Dr. S. N. Lai. Considering their evidence and also the evidence of I. O. (PW. 12), he convicted this appellant under section 302 IPC and sentenced him to undergo imprisonment for life. 10 and PW. 11 and opined that their ocular evidence got corroboration by the medical evidence of PW. 13 Dr. S. N. Lai. Considering their evidence and also the evidence of I. O. (PW. 12), he convicted this appellant under section 302 IPC and sentenced him to undergo imprisonment for life. ( 6 ) ASSAILING the order of conviction and sentence passed by the learned Court below, the learned counsel for the appellant has submitted that it was day time i. e. 3. 00 p. m. in the month of April, 1988. Even then, none of the villagers went there and saw the alleged occurrence. PW. 10 and PW. 1 I have deposed that even on raising alarm, no villager went there. Both these witnesses have deposed that appellant gave spade blow on the forehead of Puran Sao from the sharp edged portion of spade. PW. 10 claims that he saw sharp edged spade taking out by this appellant and fled away. It was submitted that PW. 13, the doctor, who conducted autopsy did not find any injury caused by sharp edged weapon, rather he found injury caused by hard and blunt substance as the forehead got fractured resulting the death of Puran Sao. Thus, the ocular evidence contradicts the medical evidence of the doctor (PW. 13 ). PW. 10 and PW. 11 did not narrate the incident to the villagers about the alleged manner of the occurrence and never disclosed the name of the assailant. PW. 12 (I. O.) has deposed that FIR was registered at the police station. Thereafter, he went to the P/o village. PW. 11 claims that her statement was recorded first, whereas the KIR is the statement of her husband PW. 10. On these grounds, it was submitted that the learned Court -below did not consider the contradictory statement and evidence on record and convicted this appellant which cannot be sustained and the appellant deserves acquittal. ( 7 ) LEARNED A. P. P. has argued that PW. 10 informant Nandwa Sao and his wife P. W. 11 parvati Devi are the eyewitnesses who have deposed that appellant Anand Sao @ Nanhak gave spade blow once on the forehead from sharp edged side. ( 7 ) LEARNED A. P. P. has argued that PW. 10 informant Nandwa Sao and his wife P. W. 11 parvati Devi are the eyewitnesses who have deposed that appellant Anand Sao @ Nanhak gave spade blow once on the forehead from sharp edged side. The doctor although has opined that injury No. 1 on the forehead was caused by hard and blunt substance, but the ocular evidence on the fact will prevail which was rightly appreciated by the learned court below who convicted the appellant and sentenced thereunder. ( 8 ) WHEN the witnesses and their evidence were summarized in the above paragraphs, i find that PW. 1 Devni Sahuain is the wife of the deceased and was present inside her house. When she came out, she did not see anyone at the spot, rather her husband had fallen down on the rock and had died. She has spoken the truth. Being a wife in the old age, she would not have concealed the real fact as the appellant was living separately from them also. This witness is a hostile witness. Other witnesses PW. 4 Rijhan sao, PW. 5 Ishwar Sahu. PW. 6 Radha Devi and PW. 7 Ramdhari Sao, all are hostile witnesses, whereas PW. 8 is a tendered witness. PW. 2 Baleshwar Sahu is the witness of inquest report who is also the witness of the seizure-list in respect of seized bloodstained soil along with PW. 9 Lallu Sao. PW. 3 is a hostile witness. ( 9 ) IN a broad daylight in the month of april, the alleged occurrence took place in the village itself. Even then, none of the independent village witness has come forward to support the prosecution case including the wife of the deceased. S6 I have to consider the evidence of PW. 10 informant nandwa Sao and his wife PW. 11 Parvati Devi. PW. 10 has deposed that he went to the police station and informed the police where his statement was recorded on which he signed (Ext, 1/6 ). But the I. O. (PW. 12) has deposed that first he registered FIR on information of the alleged occurrence and went to the P/o village and recorded the statement of the informant. Thus, the fact regarding recording of FIR is contradictory to each other. But the I. O. (PW. 12) has deposed that first he registered FIR on information of the alleged occurrence and went to the P/o village and recorded the statement of the informant. Thus, the fact regarding recording of FIR is contradictory to each other. Informant in para 3 has further stated that his statement, so recorded, was not read over and explained to him in which he signed. He claims that he was sitting in the house of his father, but out of puzzle when his father was assaulted, he could not inform anyone else. Although many villagers had assembled there, he did not disclose their names. He has specifically deposed that his statement was not recorded at the police station, rather it was recorded at home. He had been to the police station in the evening itself at 4. 00 p. m. His wife. PW. 11 parvati Devi has also deposed that sharp edge of weapon was thrust by this appellant on the forehead of her father-in-law who died at the spot. They are living quite separately from the appellant since last 20 years in all respects. Her father-in-law Puran Sao (deceased) had lodged a case of theft and assault against her and her husband (PW. 10 ). At the time of the alleged occurrence, Radha devi (PW. 6), her father-in-law deceased puran Sao and Sarpanch (PW. 7) Ramdhari sao were present there. But both of these pw. 6 and PW. 7 are hostile witness who did not support the version of PW. 10 and PW. 11. She also deposed that when she raised alarm, a large number of villagers had assembled there, but they have not been examined by the prosecution. She even did not disclose to the villagers about the manner of the alleged occurrence and never disclosed the names of the assailants. PW. 12 I. O. Ram Kishore Singh registered the FIR on 7-4-1988 on the statement of PW. 10 Nandwa sao (Ext. 2) and proceeded for the P/o village bharda and reached there at 5. 00 p. m. FIR discloses that informant went to the police station and lodged the FIR. The I. O. (PW. 12) prepared inquest report (Ext. 3/1)of the deceased Puran Sao and seized bloodstained soil (Ext. 4) and recorded statement of PW. l, PW. 6 and PW. 9 who had seen the appellant fleeing away. PW. 13 Dr. 00 p. m. FIR discloses that informant went to the police station and lodged the FIR. The I. O. (PW. 12) prepared inquest report (Ext. 3/1)of the deceased Puran Sao and seized bloodstained soil (Ext. 4) and recorded statement of PW. l, PW. 6 and PW. 9 who had seen the appellant fleeing away. PW. 13 Dr. S. N. Lal on 8-4-1988 at 8. 00 a. m. held post mortem examination on the dead body of Puran Sao and found the following ante-mortem injuries on his person : (I) Lacerated wound 3" x 2" x 3" over the frontal region of scalp with fracture of underlying bone with blood clot and brain matter had protruded out. (II) Lacerated wound on the medial aspect of nose on right side 2" x " x ". Injury no. 1 was grievous in nature caused by hard and blunt substance such as blunt portion of Kudal. Injury No. 1 was sufficient to cause death in the ordinary course of nature due to shock and haemorrhage within one day from the time of post mortem examination. The post mortem report is Ext. 5. ( 10 ) THE alleged occurrence took place in the broad daylight at village Bharda outside the house of the informant and the appellant, they were living separately. Deceased father was living with this appellant but 3-4 months prior to the alleged occurrence, he was also living separately from his son appellant Anand Sao. PW. 11, wife of informant nandwa Sao (PW. 10) has admitted that her father-in-law deceased Puran Sao has lodged criminal case against both of them for committing theft and for assaulting him. This shows that PW. 10 and PW. 11, who are interested witnesses against whom a criminal case was lodged by the deceased, are instrumental to implicate this appellant in this criminal case only to save their skin and also to grab the landed properties of all the sharers including the appellant and the deceased father. PW. 1 Devni Sahuain. wife of the deceased, has spoken (he truth that her husband fell down on the rock and died. There was none at the spot nor she saw anyone assaulting her husband. PW. 13 Dr. S. N. Lal found injury No. 1 lacerated wound on the forehead 3" x 2" x 2" and the brain matter was protruded out. wife of the deceased, has spoken (he truth that her husband fell down on the rock and died. There was none at the spot nor she saw anyone assaulting her husband. PW. 13 Dr. S. N. Lal found injury No. 1 lacerated wound on the forehead 3" x 2" x 2" and the brain matter was protruded out. It was caused by hard and blunt objective may be the blunt portion of Kudal which was the cause of death. Both PW. 10 and PW. 11 have deposed that Puran Sao was given blow with sharp edged spade and not with blunt portion of spade. This contradicts the medical evidence of the doctor (PW. 13 ). ( 11 ) WHEN considered the evidence of in-terested witnesses PW. 10 and PW. 11, I find that their evidence is itself contradictory as to whether statement of PW. 10 was recorded at the police station by PW. 12 Ram Kishore singh, I. O. or the I. O. first registered the fir "then went to the P/o village and recorded the statement of PW. 10 Nandwa Sao. PW. 11 Parvati Devi, wife of the informant, claims that her statement was recorded first at the village by the I. O. Both these interested witnesses PW, 10 and PW. 11 did not inform the villagers nor they are acquainted with the names of the villagers who assembled there after the alleged occurrence. This creates doubts in my mind about the manner of the alleged occurrence and the allegation made against the appellant alleging that he gave spade blow on the forehead of deceased Puran Sao from the sharp edged portion of the spade. The injury No. 1 caused by hard and blunt objective is due to fall of puran Sao on the rock dashing his head against the rock causing fracture and death which is the version of the wife of the deceased pw. 1 Devni Sahuain. The I. O. recorded the statement of the villagers, but they have not supported the prosecution case and arc hostile witnesses, except the seizure-list witnesses and inquest witness. Thus, I find that the prosecution has failed miserably to substantiate the charge levelled against the sole appellant under Section 302 ipc. The death of Puran Sao is not in dispute. The I. O. recorded the statement of the villagers, but they have not supported the prosecution case and arc hostile witnesses, except the seizure-list witnesses and inquest witness. Thus, I find that the prosecution has failed miserably to substantiate the charge levelled against the sole appellant under Section 302 ipc. The death of Puran Sao is not in dispute. The place and time of the alleged occurrence is also not in dispute, but only dispute is involvement of this appellant in causing murder of his father. ( 12 ) THE learned Court-below has not considered the statement of PW. 10 and PW. 11 properly who have contradicted their statement about the manner of the alleged occurrence, the weapon used (sharp edged portion of Kudal) and the evidence of the doctor (PW. 13) who has not supported the ocular evidence of PW. 10 and PW. 11. None of the independent village witnesses could be named by PW. 10 and PW, 11 who had assembled at the P/o on hearing alarm and had seen the alleged occurrence and seen the appellant fleeing away with Kudal. The i. O. could not seize the Kudal as the alleged weapon of assault used by this appellant. Thus, I find that the order of conviction of the learned Court below suffers from legal infirmities which cannot be sustained. ( 13 ) IN the result, I find merit in this criminal appeal which succeeds and is allowed. The order of conviction and sentence passed by the learned Court-below convicting the appellant under Section 302 IPC and sentencing to undergo imprisonment for life in sessions Trial No. 106 of 1988 is set aside. As the appellant is on bail, he is discharged from the liability of the bail bond furnished in this case. --- *** --- .