JUDGMENT Lakshman Uraon, J.-Sole appellant Padmawati Devi has challenged the judgment of conviction and sentence dated 18.6.2003 and 19.6.2003 respectively passed by Shri Alok Kumar Dubey, learned Additional Sessions Judge, Fast Track Court No. I, Gumla in Sessions Trial No. 43 of 1996, whereby and whereunder appellant was convicted under Section 302 IPC and sentenced to undergo R.I. for life. 2. Informant Bahuran Gwala (P.W. 3) on 1st November, 1995 had gone to village market Bilingbera, PS-Palkot, District Gumla and returned home at about 5.00 p.m. Thereafter as he was ailing, he had gone to village doctor to take some medicines. While he was returning, he heard sound of cry coming from his house. He rushed there. His elder brother Sahru Gwala (not examined) and his wife Sundai Devi (P.W. 4) informed that Ramtorni Devi, mother of the informant, while had gone to answer call of the nature at about 5.30 in her garden, then appellant gave her axe-blow on her head and hand. Ramtorni Devi sustained grievous injury and in a pool of blood she fell down and became unconscious. The axe, the means of assault possessed by appellant Padmawati Devi, was snatched by P.W. 4 Sundai Devi. In course of snatching, the handle of the axe broke resulting the axe portion was in the hand of P.W. 4 with 2/3 handle and the remaining portion of the bamboo handle remained in the hand of appellant Padmawati Devi. After assaulting Ramtorni Devi, the appellant fled away. The alleged occurrence took place only because due to illness, son of Padmawati Devi had recently died. She was suspecting Ramtorni Devi to have played witchcraft on her son resulting his death. 3. The prosecution in order to substantiate the charge examined five witnesses. P.W. 1 Jagdeshwar Sahu is a formal witness who signed (Ext. 1) on the inquest report. P.W. 2 Niranjan Dharpara, another formal witness, has signed on the seizure-list (Ext. 1/1) in respect of seized axe. P.W. 3 Bahuran Gwala is the informant and is a hearsay witness who was informed about the alleged occurrence by his, wife P.W. 4 Sundai Devi. P.W. 5 is Dr. Angraj Subhas who conducted autopsy on the dead body of Ramtorni Devi and prepared post mortem report (Ext. 2) in his pen and signature. 4. P.W. 3 Bahuran Gwala is the informant and is a hearsay witness who was informed about the alleged occurrence by his, wife P.W. 4 Sundai Devi. P.W. 5 is Dr. Angraj Subhas who conducted autopsy on the dead body of Ramtorni Devi and prepared post mortem report (Ext. 2) in his pen and signature. 4. Learned Additional Sessions Judge, Fast Track Court No.1, Gumla relied the evidence of P.W. 4 Sundai Devi holding that her evidence was corroborated by doctor P.W. 5 and also by her husband who is hearsay witness (P.W. 3). 5. Assailing the order of conviction and sentence passed by the learned Court below, the learned counsel for the appellant has argued that P.W. 3 who claims to be the informant is not the eyewitness. He went on hearing alarm and saw his mother Ramtorni Devi fallen down having sustained grievous bleeding injury. He took his mother from the garden to his house, whereas P.W. 4, his wife Sundai Devi, claims that she brought her mother-in-law from the garden to her house. Subsequently she has deposed that her Bhaisur Sahru Gwala (not examined) took her mother-in-law to her house. It was submitted that in this case, the I.O. has not been examined. The village choukidar and villager Balmohan Singh who signed on the FIR, have not been examined. The P/O could not be established as both P.W. 3 and P.W. 4 have given contradictory direction as to whether it was towards north of their house or towards east of their house. Mukhiya Damodar Singh, brother of the informant, has not been examined. It was further submitted that non-production of material exhibit Tangi also creates doubt. P.W., 4 has deposed that Balkishore Singh informed the police by narrating the entire story whose statement was not recorded as First Information Report and has not been examined. Rather the statement of hearsay witness, P.W. 3 Bahuran Gwala, has been recorded subsequently only to implicate this appellant falsely due to enmity suspecting her to be a sorcerist. The learned Court below has not considered these aspects resulting erroneous conviction of the sole appellant. It was further submitted that bloodstained sari and blouse of the deceased was not produced in Court. The learned Court below has not considered these aspects resulting erroneous conviction of the sole appellant. It was further submitted that bloodstained sari and blouse of the deceased was not produced in Court. The village doctor who examined injured Ramtorni Devi, has also not been examined, Lastly it was argued that the genesis of the alleged occurrence has been alleged that deceased played witchcraft resulting death of the son of Padmawati Devi. Padmawati Devi in h8r statement under Section 313 Cr.P.C. has denied that her son had died. Thus, the genesis of the alleged occurrence has also not been proved by the prosecution. 6. Learned A.P.P. refuting the argument advanced by the appellant, has submitted that P.W. 3 Bahuran Gwala (informant) was narrated the entire story by his wife P.W. 4 Sundai Devi who is the eyewitness and was present at the P/O. She also snatched the axe and broken portion of axe remained in her hand, whereas remaining portion of bamboo handle remained in the hand of the appellant who fled away. The P/O is the garden on the backside of the house of the informant. Hence, there is no doubt about the place of occurrence where Ramtorni Devi was assaulted with axe by this appellant. The learned Court below after considering this evidence that the manner of the alleged assault was corroborated by the medical evidence of P.W. 5 (doctor), has convicted and sentenced the appellant. 7. The learned counsel for the appellant has first attacked that the place of occurrence could not be established and the appellant was highly prejudiced by non-examination of the I.O. P.W. 3 Bahuran Gwala (informant) has deposed that place where his mother was assaulted is towards north of his house, whereas his wife P.W. 4 Sundai Devi has deposed that the place where her mother-in-law was assaulted is towards east of the house. P.W. 4 has deposed that bloodstained sari and blouse was seized by the doctor, but the same material exhibit was not brought on record. When the evidence of interested witnesses P.W. 3 and P.W. 4, is considered, I find that the P/O where Ramtorni Devi was assaulted, where blood must have fallen down profusely could not be established. The I.O. has not been examined and there is no material exhibit regarding seizure of bloodstained soil from the P/O. 8. When the evidence of interested witnesses P.W. 3 and P.W. 4, is considered, I find that the P/O where Ramtorni Devi was assaulted, where blood must have fallen down profusely could not be established. The I.O. has not been examined and there is no material exhibit regarding seizure of bloodstained soil from the P/O. 8. The genesis as stated in the FIR by Bahuran Gwala (P.W. 3) and in the evidence of P.W. 4, his wife, is that son of appellant Padmawati Devi had died recently. She suspected Ramtorni Devi to have played witchcraft, but Padmawati Devi in her examination under Section 313 Cr.P.C. has denied that her son died recently due to illness. There is also no evidence on record to show that the s9n of appellant Padmawati Devi has died recently. Thus, I find that the motive of the alleged assault could not be proved by the prosecution resulting failure of the genesis of the alleged occurrence. 9. The only evidence is the evidence of P.W. 3 Bahuran Gwala who is a hearsay witness who only saw his injured mother. He called village doctor who injected her, but after half an hour his mother died. He is also witness in respect of seized axe on seizure-list (Ext. 1/3) which was also signed by Balkishore (Ext. 1/2). Balkishore has not been examined by the prosecution. The village doctor has also not been examined by the prosecution. P.W. 3 Bahuran Gwala after the death of his mother, went to the police station Palkot, but no one was present there. Hence he came back along with Balkishore Singh. On the next morning, he along with Balkishore Singh again went on motorcycle to Palkot PS at 7.00 a.m. where the first information was recorded on which he and Balkishore signed (Ext. 1/2). His elder brother Sahru, who was at home, and P.W. 4 Sundai Devi, rushed to the garden on hearing alarm where Ramtorni Devi was assaulted, are the only eyewitnesses. Sahru Gwala, elder brother of the informant, has not been examined. The village doctor Mangru Baraik has also not been examined to show that he had first treated and injected the injured Ramtorni Devi. Village Mukhia was informed along with Chaukidar. Mukhiya Damodar Singh (not examined) went to the house of the informant and also went at night to Police station along with Balkishore. The village doctor Mangru Baraik has also not been examined to show that he had first treated and injected the injured Ramtorni Devi. Village Mukhia was informed along with Chaukidar. Mukhiya Damodar Singh (not examined) went to the house of the informant and also went at night to Police station along with Balkishore. At the police station, there was only constable present whom Balkishore Singh narrated the entire incident. Said Balkishore Singh has not been examined by the prosecution. On the next morning at 7.00 a.m., again they went to the Police Station where again it was Balkishore Singh who narrated the entire incident to the Officer-in-Charge. informant did not see the Officer-in-Charge writing the statement of Balkishore Singh, nor the statement recorded was read over to Balkishore Singh. When he first went to the P/O, he saw axe in the hand of his wife having blood on it. He also saw bloodstains on her Sari and Blouse. His wife snatched the axe and produced before the I.O. which was seized and seizure-list was prepared on which these witnesses signed. P.W. 4, his wife, claimed that she snatched the axe from the hand of appellant Padmawati Devi. The villagers on alarm raised by her had also assembled, but none of the independent villagers have been examined by the prosecution. She admits that four days prior to the alleged occurrence, there was altercation in between her mother-in-law Ramtorni Devi (deceased) and appellant Padmawati Devi. She deposed that the P/O garden is towards east of her house contradicting the statement of her husband P.W. 3 that it is situated towards north of their house. She deposed that her mother-in-law was brought home by her Bhaisur Sahru Gwala. Due to non-examination of Sahru Gwala, the evidence of this sole eyewitness P.W. 4 Sundai Devi could not be corroborated. Her bloodstained Sari and blouse was seized by the doctor is also not convincing to me. P.W. 4 Dr. Angraj Sub has on 3.11.1995 at 11.30 a.m. conducted autopsy on the dead body of Ramtorni Devi, aged about 60 years, and found ante mortem one incised wound in frontal part of skull right side, 6" x 1" x 2", one lacerated wound in the forearm right side 2" x 1" x 1" and, one abrasion on the left side of shoulder left side 3" x 1/2. All the injuries were ante mortem in nature caused by sharp substance. The Doctor found injury no. 1 sufficient to cause death within 24 to 48 hours from the time of examination. 10. The alleged occurrence took place at 7.30 p.m. in the village Bilingbera. There was village market where P.W. 3 Bahuran Gwala, husband of P.W. 4 Sundai Devi, had gone and returned home. If that was the position regarding market day in the village itself, there must have been gathering of villagers, but except P.W. 3 and P.W. 4, husband and wife, none of the villagers have supported the prosecution case. Elder brother of the informant, namely Sahru Gwala who had also gone to the P/O and brought his injured mother liamtorni Devi to home, is silent as he has not been examined. Village Mukhiya has also not been examined. Balmohan Singh, who has signed on the FIR along with informant Bahuran Gwala, has also not been examined. Informant P.W. 3 has deposed that it was Balkishore Singh (not examined), who is brother of Balmohan Singh (not examined), who narrated the entire story in the night of alleged occurrence before the police constable at Palkot police station. In the morning, it was Balkishore Singh who narrated the entire story to the Officer-in Charge, Palkot PS which was recorded. Village Chaukidar and Village Mukhiya, who were also present and were informed about the alleged occurrence, have also not been examined. Informant did not see the recording of statement of Balkishore Singh at the Police Station as the Officer-in Charge, Palkot PS did not read over and explain to them. 11. When considered the evidence of the sole eyewitness P.W. 4, I find that her evidence could not be corroborated even by her husband P.W. 3 regarding establishment of the place of occurrence. Non-production of seized Tangi also creates doubt. The village doctor Mangru Baraik who gave injection to injured Ramtorni Devi, has also not been examined. Even the elder brother of the informant would have been the best witness as he was present at the P/O along with P.W. 4 Sundai Devi, has not been examined only to suppress the truth of the prosecution case. 12. The village doctor Mangru Baraik who gave injection to injured Ramtorni Devi, has also not been examined. Even the elder brother of the informant would have been the best witness as he was present at the P/O along with P.W. 4 Sundai Devi, has not been examined only to suppress the truth of the prosecution case. 12. When considered all the pros and cons of the prosecution case, I find that the prosecution has miserably failed to establish the P/O, the genesis of the alleged occurrence and also the manner of the alleged occurrence. The prosecution case is itself doubtful. That is why no village independent witness including the elder brother of informant P.W. 3, village chaukidar and other independent witnesses have been examined including the I.O. of this case. The learned Court below has not considered all these aspects meticulously and arrived at an erroneous conclusion convicting the appellant under Section 302 IPC which cannot be sustained in view of my above reasonings. 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 in Sessions Trial No. 43 of 1996 is set aside. The appellant is acquitted. As the appellant is in custody, he is ordered to be released forthwith from the custody if not wanted in any other case. S.J. Mukhopadhaya, J.-1 agree. .