Judgment : N. N. TIWARI, J. ( 1 ) THE appellants have preferred this appeal against the judgment dated 4-4-90 passed by Shri P. N. Yadav, 3rd Additional Sessions Judge, Hazaribagh in S. T. No. 368/88 whereby the appellants have been convicted under Section 302, IPC read with Section 34, IPC and have been sentenced to undergo R. I. for life. The appellants have been further found guilty under Section 364, IPC and have been sentenced to undergo R. I. for 10 years. The sentences are to run concurrently. ( 2 ) THE prosecution case as made out in the FIR, Ext. 3, recorded on the statement of the informant Draupadi Devi is that deceased parmeshwar Mahto was a labourer. He along with others was engaged on hire for cutting earth in village Haramwar. On 15-4-88 as usual he had gone on work in the early morning but did not return home. One Raj Kumar, son of Arjun Mahto PW-6, informed the informant that Parmeshwar had to attend a feast and would return by 2 oclock. Further that on 14-4-88 at about 4-5 p. m. Parmeshwar Pd. Mahto (appellant no. 2) son of Dukhan Mahto of village champadih had come to the residence of the informant who owed a sum of Rs. 300/- for about three years. When her husband asked to repay the same, he called him and took towards a shop. Her husband returned af-ter about an hour. Again at about 10 p. m. Parmeshwar came to her residence and called her husband, but she did not allow him to go out. Then Parmeshwar proposed that next day he would make a whistle sound near his earth cutting site to call him and asked the informants husband to follow him thereafter. As usual her husband, due to hot in day time, went at work to Haramwar at about 4 a. m. but he did not come home till 12 oclock. She was not satisfied with the reason stated by Raj Kumar son of Arjun and as such she went to Arjun Mahto and wanted to know whereabouts of her husband. Arjun told her that her husband has gone to enjoy a chicken party and will come back by 2 oclock. She waited for whole night and on 16-4-88 she started searching her husband. Arjun told her that her husband has gone to enjoy a chicken party and will come back by 2 oclock. She waited for whole night and on 16-4-88 she started searching her husband. In the meanwhile, Mahadeo Mahto pw-1 and Govind Mahto PW-2 of village bihari told her that at about 11 a. m. on 15-4-88 Parmeshwar Prasad Mehta (appellant No. 2) and Kiti Rana (appellant No. 1)along with the deceased Parmeshwar Mahto were going somewhere on two bicycles with pigeon, oil and spices in a bag and in conversation, while giving tobacco, they told him that they are going to enjoy a party. The said pws-1 and 2 thereafter returned to their homes. Again when the said PWs were going to jungle in the afternoon at about 3 p. m. to collect wood they saw only two persons, out of the three, returning on bicycle. When asked about the third person, they were told that one person is coming behind them. The informant suspected that her husband was killed by the said two persons (the appellants) and the dead body was concealed. ( 3 ) ON the basis of the said fardbeyan of draupadi Devi a formal FIR, Ext. 3, was drawn up on 17-4-88 and the case was registered initially under Section 364, IPC. ( 4 ) AFTER investigation, the police submitted charge-sheet against the appellants and one Rashmi and thereafter the case was committed to the Court of Session. ( 5 ) IN course of trial the prosecution examined 12 witnesses. Out of them PW-1 mahadeo Pd. Mahto, PW-4 Mahadeo Rana, pw-5 Ram Chandra Rana, PW-6 Arjun mahto were declared hostile witnesses whereas PW-2 Govind Pd. Mahto, PW-3 sakaldeo Pd. Mahto and PW-7 Gandawa mahto were tendered. Thus, the said witnesses did not support the case of the prosecution. PW-8 Parmeshwar Pd. Mahto who was the shopkeeper stated in his evidence that from his shop the appellants had purchased some spices. PW-9 Harihar Mahto came to prove that the appellants house was searched in his presence. But in Para 2 PW-9 stated that nothing incriminating was recovered from the appellants house. PW-10 is the Investigating Officer. He stated that on the statement of Kiti Rana (the appellant no. 1) the dead body of the deceased parmeshwar Mahto was recovered. He prepared the inquest report and also investigated the case. But in Para 2 PW-9 stated that nothing incriminating was recovered from the appellants house. PW-10 is the Investigating Officer. He stated that on the statement of Kiti Rana (the appellant no. 1) the dead body of the deceased parmeshwar Mahto was recovered. He prepared the inquest report and also investigated the case. He also got the statement of pw-1 Mahadeo Pd. Mahto recorded under section 164, Cr. P. C. and subsequently on the conclusion of the investigation submitted the charge-sheet against the appellants. PW-11 Saryu Pd. Mahto stated that the accused parmeshwar Pd. Mehta had pointed out the place from where the dead body was recovered and thereafter inquest report was prepared in his presence. PW-12 is the doctor who conducted the post-mortem and proved the post-mortem report which has been marked as Ext. 6. In paragraph 1 he has stated that he found rice and vegetable half digested in the stomach of the deceased and the time elapsed since death was 48 hrs. ( 6 ) ON the basis of the evidence mainly of pw-11 Saryu Pd. Mehta the learned Sessions judge came to the conclusion that the accused Parmeshwar Pd. Mahto confessed before the I. O. which led to the recovery of the dead body of the deceased after five days of his kidnapping which was in highly decomposed state and it was not possible for the doctor to give definite opinion regarding the time of commission of murder and neither the evidence of the doctor nor the postmortem examination report was relevant in the instant case. According to the Sessions judge, the circumstantial evidence gave rise to the inevitable and irresistible conclusion that the accused Parmeshwar Pd. Mahto and kiti Rana hatched conspiracy to kill and in furtherance thereto killed the deceased parmeshwar and buried his dead body at a lonely place in the forest and thereby rendered themselves guilty of offences under sections 120b, 364, 302/34 and 201, IPC. The Sessions Judge thus convicted the appellants under Sections 120b, 364, 302/34 and 201, IPC and sentenced them to undergo r. I. for life under Section 302/34, IPC and to undergo R. I. for 10 years under Section 364, IPC. However, the accused Rashmi devi, who was also charged along with the appellants, was given benefit of doubt and was acquitted of the charges. ( 7 ) MR. Dipak Kumar and Mr. However, the accused Rashmi devi, who was also charged along with the appellants, was given benefit of doubt and was acquitted of the charges. ( 7 ) MR. Dipak Kumar and Mr. B. K. Dubey, learned counsel appearing on behalf of the accused-appellants in this appeal, assailed the impugned judgment of conviction and the order of sentence passed by the learned court below on several grounds. They submitted that the impugned judgment and order is based on no evidence and the same is wholly illegal and unsustainable. According to the learned counsel for the appellants, there is absolutely no iota of admissible evidence to prove the charges against the appellants. According to them the Court below has relied upon an extra legal confession said to have been made by the accused appellants which is not at all admissible in evidence. According to the learned counsel there is no eye-witness in this case and even the informant has not been examined to support the prosecution case. The instant case is completely based on circumstantial evidence, but there is no evidence to complete the chain of circumstances and to fasten the liability of guilt on the appellants. Even the alleged confessional statement which has been heavily relied on by the Sessions Judge in passing the impugned judgment has not been proved inasmuch as the magistrate who had taken the statement under Section 164, Cr. P. C. has not been examined. The medical evidence also does not support the prosecution story. According to the learned counsel, the date of occurrence is 15-4-88 and there was inordinate delay in lodging the FIR dated 17-4-88. According to them, there was no recovery of any incriminating materials from the house of the appellants and there is no recovery of the weapon which was used in committing the said offence. Learned counsel submitted that the body of the deceased was exhumed and was sent for post-mortem examination by the I. O. on 21-4-88 after about six days from the alleged date of death, but the doctor who conducted the postmortem examination found that the time elapsed since death was 48 hours. According to them, it was alleged that the deceased had gone to attend a non-vegetarian party, but from the stomach of the deceased only half digested vegetable and rice were found. According to them, it was alleged that the deceased had gone to attend a non-vegetarian party, but from the stomach of the deceased only half digested vegetable and rice were found. According to them, PW-1, PW-4, PW-5 and pw-6 have been declared hostile and PW-2, pw-3 and PW-7 were tendered. Learned counsel for the appellants placed their reliance on a decision reported in (2003) 1 East cri C 245 (Bandhan Mahto v. State of Bihar)and argued that when the link between the last seen and the murder is missing and remained uncorroborated the accused is entitled for benefit of doubt, as the evidence of only last seen is not sufficient for sustaining the conviction and sentence. They further relied on a decision reported in 1986 cri LJ 1058 (Gauhati) (Phusu Koiri v. State of Assam) on the said point and emphasized that a mere circumstance that the accused was seen last in the company of the missing person is not by itself sufficient to convict the accused in view of the fact that the dead body was recovered a long time after the date of disappearance. The learned counsel further placed reliance on a decision, reported in (1997) 1 East Cri C 44 to fortify the point that the conviction is not maintainable when the case is based on evidence of extra judicial confession particularly when none of the witnesses has seen the actual occurrence. The learned counsel further relied on medical jurisprudence and Toxicology" by H. V. W. Cox to show that that the food is completely digested in six hours and in the instant case the doctor PW-12 has found on examination of the dead body that there is half digested vegetable and rice in the stomach of the deceased and submitted that the same is contrary to the prosecution version that he had gone to enjoy the party which was a non-vegetarian. In such case according to the learned counsel, meat consumed by the deceased could not have been digested in such a short period and the same should have been found if the prosecution version is to be believed. In such case according to the learned counsel, meat consumed by the deceased could not have been digested in such a short period and the same should have been found if the prosecution version is to be believed. The learned counsel further cited AIR 1955 Manipur 1 : (1955 Cri lj 139), AIR 1948 Nagpur 344 : (1948 (49)cri LJ 561) and 1985 East Cri C 455 (SC) to support their grounds that the confession of a person made in the police custody is not admissible in evidence and that the statement of witnesses not taken during investigation and witnesses examined for the first time in the Court cannot be taken into consideration. ( 8 ) MR. S. K. Dutta, learned APP, on the other hand, has tried to support the impugned judgment by submitting that the grounds raised by the appellants are technical grounds and only on that basis the judgment of the Court below cannot be held illegal and unsustainable. According to Mr. Dutta, though there are contradictions in the evidences and most of the witnesses have either been declared hostile or have been tendered, yet it also goes against the accused persons as they have not explained these circumstances and now-a-days the witnesses are being influenced by the accused persons and of which judicial notice can be taken. According to Mr. Dutta, there is no such illegality in the judgment which warrants any interference by this Court. ( 9 ) HAVING heard the counsel for the parties at length and thoroughly perused the evidence and materials on record, we find that there is much substance in the submission of the learned counsel for the appellants that the prosecution has failed to prove the charges beyond all reasonable doubts. On thorough appraisal of the evilences, we find that there is no strong evidence on record to complete the chain of circumstances and to corroborate the story of last seen and the commission of murder by the appellants. There is no eye-witness n this case and even the informant has not been examined. The medical evidence also does not support the prosecution story. According to the doctor PW-12, who conducted the post-mortem examination, the time of death was about 48 hours before the postmortem examination which was held on 21 -4-88 i. e. after about six days of the alleged date of occurrence. The medical evidence also does not support the prosecution story. According to the doctor PW-12, who conducted the post-mortem examination, the time of death was about 48 hours before the postmortem examination which was held on 21 -4-88 i. e. after about six days of the alleged date of occurrence. The learned Sessions judge has heavily relied on the evidence of the PW-1 and PW-11 who have said about the confession of the accused persons. The statement of PW-1 to that regard is said to have been recorded under Section 164, Cr. P. C. but neither the said statement has been brought on record nor the Magistrate who had recorded the said statement, has been examined to support the same. There is thus no cogent and convincing evidence to prove the circumstances alleged by the prosecution and only on the basis of a few littered links here and there and that too weak and vulnerable, the judgment of conviction cannot sustain in law. We, therefore, find that the prosecution has not been able to bring home the charges against the appellants beyond all reasonable doubts and as such they are entitled to be given benefit of doubt. ( 10 ) IN view of the above discussions and findings, we allow this appeal and set aside the Impugned conviction and sentence passed against the appellants acquitting them. As the appellants are on bail, they are discharged from the liability of their bail bonds. S. J. MUKHOPADHAYA, J. : agree. Appeal allowed. --- *** --- .