ORDER 1. The appellant was tried under Section 302/34 of the Indian Penal Code and on being found guilty, he was sentenced to imprisonment for life. The allegation against him is that on the night of 19/20.12.1990, the appellant by joining the other unidentifiable persons strangled the deceased Som Chand Singh Sardar, leading to his death. 2. The prosecution case is as follows: A few days prior to the date of incident, the appellant and his friends assaulted Suchand Mahto, who is the father of PW-3, Jitu Mahto. Hence, Suchand Mahto and the deceased Som Chand Singh Sardar were asked to live in the house of PW-3 for safety. On 19.12.1990, the deceased took his bed. PW-3, Jitu Mahto, was in the house along with his younger brothers and sisters. During night, the deceased went out of the house to pass urine. PW-3 woke up and saw the appellant strangling the deceased while the other unidentifiable persons pressing the mouth of the deceased with cloth. Thereafter, PW-3 saw the appellant and others, who were pressing with him, hanging the dead body to a tree. On 20.12.1990, PW-3 went to the house of Goutam Singh Sardar (PW-2) at 7.00 a.m. He informed him as to what happened on the previous night. Thereafter, complaint was given by PW-2 at the police station. Investigation in the crime was taken up, during which inquest was conducted and the dead body was sent to the hospital for post mortem. 3. On receipt of the dead body, post mortem was conducted by Dr. Tulsi Mahto, PW-5. He found the following injuries: External – (i) Incised wound V shaped with prongs directed towards left over the front of neck overlying the sound box. The prongs were measuring 2.5 c.m. and 3.5 c.m. 1/5 cm. skin deep. (ii) Ligature mark 1.5 to 2 c.m. in width overlying the front and sides of the neck 2 c.m. above injury No. 1 which runs obliquely upwards backwards towards right with a knot mark overlying the mastoid process of skull bone behind the right ear. The ligature mark is more deeper towards left. There was mark of dribbling of saliva overlying the left angle of mouth and adjoining cheek. The doctor issued Ext.2, the post mortem certificate, with his opinion that the death is on account of hanging. 4. The ligature mark is more deeper towards left. There was mark of dribbling of saliva overlying the left angle of mouth and adjoining cheek. The doctor issued Ext.2, the post mortem certificate, with his opinion that the death is on account of hanging. 4. After the completion of investigation, final report was filed and the appellant denied the incriminating circumstances. He examined two witnesses as DWs 1 and 2. DW-1, Tarachand Majhi, was examined to prove that the deceased was murdered by PW-4. DW-2 was examined to say that the DW-1 told him that the deceased was murdered by PW-4. 5. The learned Counsel appearing for the appellant submits that PW-3, the sole eye witness, who was aged about 12 years at the time of occurrence, could not have seen the occurrence, as claimed by him in court. He submits that even, according to the prosecution, the occurrence took place outside the house as the dead body was seen hanging to a tree and that it is not possible for PW-3 to have seen the occurrence from inside the house where, according to PW-3, a lamp was burning. 6. On the above contention, we have heard Mrs. C. Prabha, learned A.P.P., appearing for the State. 7. The doctor, who conducted autopsy and who issued post mortem certificate, Ext.2, conclusively establish the cause of death of the deceased in this case. 8. We, on the medical evidence, hold that the deceased died on account of homicidal violence. 9. PW-3 was examined to establish that the appellant pressed the neck of the deceased and that the other persons who were present with the appellant closed the mouth of the deceased and thereafter the dead body of the deceased was hanged to a tree. PW-3 claimed in his evidence that as there was a lamp burning inside the house, he was able to see the entire occurrence. 10. On going through the evidence of PW-3, we find it to be thoroughly unsatisfactory and we find it also difficult to accept that PW-3 could have been in a position to see as to what was happening outside the house. It is the very case of the prosecution that a lamp was burning inside the house and there is no material to show that the deceased, when went out of the house, took any light with him. It is the very case of the prosecution that a lamp was burning inside the house and there is no material to show that the deceased, when went out of the house, took any light with him. It, therefore, transpires that the deceased, who was murdered outside the house, could not have been seen by PW-3 from inside as the lamp was burning only inside the house though, PW-3 claimed that the appellant pressed the neck of the deceased and, therefore, the deceased died. The doctor, PW-5, who conducted autopsy, did find incised injury on the neck. There is no explanation from PW-3 or from any other source as to how the deceased suffered the said incised injury. If the deceased was only strangled by the appellant and the mouth of the deceased was closed by the other accused then no incised wound could have been noticed by the doctor. 12. We have also perused the post mortem certificate, which shows that the doctor found undigested food in the stomach of the deceased. If the occurrence had taken place on the night then doctor would not have found any undigested food on the stomach of the deceased. This also indicates that the occurrence must have been taken place much earlier and PW-3 is not an eyewitness to the said occurrence. 13. We, therefore, reject the evidence of PW-3. 14. We are unable to accept the evidence of DWs-1 and 2 to say that the deceased was murdered by PW-4. DW-2s evidence Is hearsay in nature and the conduct of DW-1 in not going to the police station, if he had seen the occurrence, is highly artificial. We, therefore, do not place any reliance on the evidence of DWs-1 and 2, while we also do not place reliance on the evidence of PW-3. 15. We, therefore, set aside the conviction and sentence imposed upon the appellant. The appeal is allowed. The appellant, Habar Manjhi alias Hopna Manjhi, who is in jail, shall be released forthwith, unless he is wanted in connection with any other case(s).