JUDGMENT 1. By Court Both the appeals have arisen out of common judgment of conviction but separate order of sentence passed against the appellants by Shri P.K. Jha, 7th Addl. Judicial Commissioner, Ranchi in Sessions Trial No. 19 of 1998/467 of 1998 whereby each of the appellants has been convicted under Section 302/34 I.P.C. and sentenced to undergo rigorous imprisonment for life. They were further convicted under Section 201 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for 5 years. 2. The prosecution story as it stands narrated in the Fard Bayan of the informant Lakhan Binjhiya (P.W. 1) and recorded by Namkum Police on 8.5.1997 was that he had been to the market with his mother Savitri Devi (since deceased) on 5.5.1997, where in the market Dolka Pahan, Hindu Pahan and one Mahadeo Munda got his mother excessively drunk and all of them also consumed liquor. The informant alleged that while he along with his mother and others were returning and reached near a lonely place between Nachaldag and Pahan Toli, all the three accused pinned her mother down on the earth and committed murder by strangulating her. The appellants threatened the informant to flee away. Pursuant to such threatening he returned back to his home and narrated the occurrence only to his elder brother and none-else. On 8.5.1997 the matter was informed to Harish Chandra Singh Munda Pahan Raja (P.W. 7) and Matias Munda (not examined) and after extensive search the dead body of his mother could he located which was kept concealed under the earth near a river. Disclosing the genesis the informant narrated that his father Budhram Binjhiya was a Vaidya who had saved life of a person through medicine to whom the accused Dolka Pahan had administered poison and for such reason Dolka Pahan with the aid of Hindu Pahan and Mahadeo Munda committed murder of his mother and concealed the dead body. The police registered Namkum P.S. Case No. 63 of 1907 against alt the three accused persons under Section 302/34 and 201 I.P.C. but submitted charge-sheet after investigation only against Dolka Pahan and Mahadeo Munda pending investigation against Hindu Pahan. Accordingly, cognizance of the offence was taken and the case was committed. In the meantime charge-sheet was submitted also against the accused Hindu Pahan giving rise to two different numbers of trial viz. Accordingly, cognizance of the offence was taken and the case was committed. In the meantime charge-sheet was submitted also against the accused Hindu Pahan giving rise to two different numbers of trial viz. Sessions Trial No. 19 of 1998 and Sessions Trial No. 467 of 1998 which were amalgamated and accordingly charge were framed against all the three accused persons under Section 302/34 and 201 I.P.C. to which they pleaded their innocence, false implication and claimed to be tried. 3. Altogether 9 witnesses were produced and examined on behalf of the prosecution. Besides, the signature of the informant Lakhan Binjhiya on his Fard Bayan was marked Ext. 1, his signature on the statement recorded under Section 164 Cr.P.C. Ext. 1/1, signature of P.W. 3 Karma Binjhiya on the inquest report Ext. 2, signature of P.W. 6 Soma Binjhiya on the inquest report Ext. 3, signature of the attesting witnesses Harish Chandra Singh Munda (P.W. 7) on the Fard Bayan was proved Ext. 4. Similarly, the formal F.I.R. was proved and marked Ext. 5, Ext. 6 was the inquest report, Ext. 7 was the statement of the informant recorded under Section 164 Cr.P.C. and the postmortem report of Savitri Devi was proved and marked Ext. 8. During course of trial the accused Mahadeo Munda died and therefore, his criminal proceeding was dropped and it continued against the remaining two accused who are the appellants herein. 4. Mr. Gopal Sahu, learned Counsel by his common argument in both the appeals submitted that the conviction of the appellants Dolka Pahan and Hindu Pahan is based upon the solitary evidence of P.W. 1 Lakhan Binjhiya who has claimed to be the eye-witness of the alleged occurrence. The statement of the informant recorded under Section 164 Cr.P.C. suffers from vital contradiction on material facts inconsistent to his earlier statement before the police and subsequent statement in the Trial Court. The informant P.W. 1 was specific in his statement before the police that all the 3 accused strangulated her mother and he was threatened to run away from the place of alleged occurrence but he was more specific in his statement under Section 164 Cr.P.C. wherein he made substantial development by specifying the overfact that his mother was pinned down by the appellant Dolka Pahan whereas her hands were held by the appellant Hindu Pahan and it was Mahadeo Munda who strangulated his mother to death. But in his substantial evidence before the Court he exonerated the criminal liability of the accused Mahadeo Munda and for such deviation the informant was declared hostile by the prosecution. When his attention was drawn towards his earlier statement recorded under Section 164 Cr.P.C. he admitted having narrated before the Magistrate that it was Mahadeo Munda who strangulated his mother but during cross-examination he clearly testified that Mahadeo Munda had not committed murder of his mother and whatever he had narrated before the police and also before the Magistrate were on tutoring of the other witnesses. In view of such inconsistency Mr. Sahu submitted that the statements of P.W. 1 Lakhan Binjhiya delivered at different stages as the eye-witness of the occurrence are not worthy of credence, admittedly being tutored witness and therefore, not at all reliable to base the conviction on his solitary evidence uncorroborated by the other sources. The fact cannot be lost sight of that his age was only 13 at the time of his testimony who could be influenced by the interested persons and therefore his statements required proper scrutiny. 5. Learned Counsel further pointed out the testimony of this witness who admitted as contained in para 40 that he was tutored by Krishna and Harish Chandra Singh Munda (P.W. 7) what to depose. 6. P.W. 2 Kajru Mahto, P.W. 4 Budhnath Singh & P.W. 5 Jaleshwar Naik were declared hostile and no material could be elicited when their attention were drawn by the prosecution. P.W. 3 Karma Binjhiya proved his signature on the inquest report Ext. 2. He admitted recovery of the dead body of Savitri Devi in his presence and that he had accompanied Krishna (not examined) Harish Chandra Singh Munda (P.W. 7) and Tara (not examined) to the river side from the dead body was unearthed. 7. P.W. 6 Soma Binjhiya being the elder son of the deceased, and important witness, testified that her mother had been to market some two years ago but she did not return back. He was communicated by Lakhan (P.W.1) who returned alone and narrated that the appellant Dolka Pahan, Hindu Pahan and the accused Mahadeo Munda administered liquor to her and committed her murder. He was communicated by Lakhan (P.W.1) who returned alone and narrated that the appellant Dolka Pahan, Hindu Pahan and the accused Mahadeo Munda administered liquor to her and committed her murder. On the subsequent day he proceeded in search of his mother and during search he was advised by one Veena Oraon (not examined) that he may discover the body of his mother in rivulet or drains. During search the dead body of his mother could be discovered on the bank of river near Deogami Sarna which was graved and covered. He with his brother returned back to village and informed his uncle Karma Binjhiya (P.W. 3). On the subsequent day the dead body was removed and there held a Panchayati in the village. He testified that thereafter his brother went to the police station and instituted a case. The police came, seized the dead body, prepared the inquest report and he put his signature as the witness (Ext. 3). 8. Mr. Sahu submitted that admittedly this witness was not the eye-witness of the occurrence and he derived information from his younger brother P.W. 1 Lakhan Binjhiya. He admitted under cross-examination that a Panchayati was held in the village in respect of the recovery of the dead body of his mother which was attended by appellant Hindu Pahan as well as by 60/70 villagers and only thereafter upon due deliberation and consultation a case was instituted at the police station. The witness fairly admitted in his testimony about persistent enmity between Harish Chandra Singh Munda on one side and Dolka Pahan as well as Hindu Pahan to another side. 9. P.W.7 Harish Chandra Singh Munda a hearsay witness, also derived information from P.W. 1 Lakhan Binjhiya in respect to the complicity of Dolka Pahan, Hindu Pahan and the accused Mahadeo Munda who according to him strangulated his mother after administering liquor while she was returning from market with Lakhan Binjhiya. He proved his signature on the statement of the informant Lakhan Binjhiya recorded at the police station as the attesting witness, marked Ext. 4. He further admitted that the two other witnesses viz. Krishna Munda and Tara Lal Munda were dead. He denied having visited the place of recovery of the dead body. Mr. Sahu submitted that this part of the statement of P.W. 7 suffers from material contradiction in relation to the statements of the other witnesses viz. 4. He further admitted that the two other witnesses viz. Krishna Munda and Tara Lal Munda were dead. He denied having visited the place of recovery of the dead body. Mr. Sahu submitted that this part of the statement of P.W. 7 suffers from material contradiction in relation to the statements of the other witnesses viz. P.W. 1 Lakhan Binjhiya and P.W. 6 Soma Binjhiya and therefore, the statement of P.W. 7 before the Trial Court was also not worthy of credence. 10. Advancing his argument Mr. Sahu attracted our attentions towards the statement of P.W. 8 Binod Kumar Singh, Investigating Officer of the case as contained in paragraph 31 that he did not find any injury or wound on the dead body at the time of preparing the inquest report and even the neck of the dead body was not tied with any cloth and that he had given his opinion in the inquest report on the narration of the witnesses that the murder appeared to be committed was caused by strangulation (Ext. 6). The Investigating Officer had not examined the material witnesses such as Krishna and Tara and therefore, adverse inference can be drawn against the prosecution for withholding them from witness box. 11. Finally, Mr. Sahu attracted the attention towards the postmortem report of Savitri Devi Ext. 8 which was held by Dr. Tulsi Mahto (P.W. 9), an Associate Professor, Department of Forensic Medicine, R.M.C.H., Ranchi, an expert on the subject on 9.5.97 at R.M.C.H., Ranchi at 10.45 hours and found the following;- A sari was tied around the neck with its knot over the left side of the neck. The knot was fixed having no running noose. After removal of the ligature material, he found a ligature mark around the neck 2 cm. to 3 cm. in width situated transversely and was continuous. There was contusion of soft tissue under the ligature mark. Rest of the organs were normal but congested. Her stomach and urinary bladder were found empty with the uterus non-gravid. In the opinion of the Doctor the ligature mark was ante-mortem and death was due to asphyxia as a result of pressure over the neck i.e. strangulation. Time elapsed since death was assessed 3 to 5 days from the time of postmortem examination and he proved the postmortem report Ext. 8. In the opinion of the Doctor the ligature mark was ante-mortem and death was due to asphyxia as a result of pressure over the neck i.e. strangulation. Time elapsed since death was assessed 3 to 5 days from the time of postmortem examination and he proved the postmortem report Ext. 8. In the cross-examination the Doctor opined that the mark of ligature found on the deceased could not be caused by hanging and there was no nail mark or thumb mark on the neck and that the injury found can be caused by throttling. 12. According to the learned Counsel for the appellants there was vital contradiction between the inquest report and the postmortem report. According to the informant (P.W. 1) three persons strangulated her mother to death. When the dead body was recovered after 3 days from the earth, there was no injury on any part of her body including on her neck and accordingly the inquest report was prepared by the police according to observation made and in his substantive evidence also the Investigating Officer admitted that at the time of preparation of inquest report he did not find any cloth tied around the neck of the deceased. But when the dead body was brought on the postmortem table for examination, Dr. Tulsi Mahto an expert in the field of forensic medicine found a sari tied around the neck with its knot over the left side of the neck and the knot was fixed so tightly that it was having no running noose. He found the ligature mark around the neck only after removal of the ligature material, therefore, the injury found on the neck and the manner of occurrence as alleged was not corresponding to the prosecution case as projected by the child witness P.W. 1 Lakhan Binjhiya who has admitted that he was tutored by two witnesses before he deposed in the Court. The appellants are innocent who are in custody for about 10 years without any legal evidence on record against them and, therefore, they may be acquitted. 13. Mrs. Chandra Prabha, learned A.P.P. submitted that admittedly there is noeye-witness except P.W. 1 Lakhan Binjhiya who was all along with his mother Savitri Devi when the appellants committed her murder after administering liquor by strangulating her. 13. Mrs. Chandra Prabha, learned A.P.P. submitted that admittedly there is noeye-witness except P.W. 1 Lakhan Binjhiya who was all along with his mother Savitri Devi when the appellants committed her murder after administering liquor by strangulating her. Even if any development was made in the statement of child witness P.W. 1 Lakhan Binjhiya it was with respect to the accused Mahadeo Munda, co-accused who died during trial but Lakhan Binjhiya was very much firm in his testimony with respect to the complicity of the appellant Dolka Pahan and Hindu Pahan with specific attribution that the appellant Dolka Pahan had pinned his mother down on the earth whereas appellant Hindu Pahan held the hands of his mother and it was Mahadeo Munda who strangulated his mother to death in furtherance of common intention and in this manner the appellants shared the common intention to one another who have been rightly held guilty for the charge of murder and concealing the dead body. Finally, she submitted that the judgment was well discussed which did not call for interference in appeals. 14. Having regard to the facts and circumstances of the case, we find substance in the argument advanced on behalf of the appellants with respect to the development made by P.W. 1 Lakhan Binjhiya who claimed to be the eye-witness of the occurrence and admitted that he was tutored by some witnesses, We further find that though he had named the appellant Dolka Pahan and Hindu Pahan along with the accused Mahadeo Munda with their specific attributions in the commission of murder of his mother that Dolka Pahan had pinned her mother down on the earth, Hindu Pahan held her hands and it was Mahadeo Munda who strangulated her mother to death but in his substantive evidence before the trial judge he retracted from his earlier statement by testifying that Mahadeo Munda was not amongst the assailants against whom his specific allegation as eye witness was of strangulating his mother to death. We, therefore, find that his statement is not worthy of credence in view of the admission of this child witness that he was tutored by two persons Krishna (not examined) and Harish Chandra Singh Munda (P.W. 7) before his statement on oath in the trial Court. The other witnesses such as P.W. 3 Karma Binjhiya and P.W. 6 Soma Binjhiya derived information from P.W. 1 Lakhan Binjhiya. The other witnesses such as P.W. 3 Karma Binjhiya and P.W. 6 Soma Binjhiya derived information from P.W. 1 Lakhan Binjhiya. We further find that the investigation was done by the P.W. 8 Binod Kumar Singh in perfunctory manner who did not examine the material witnesses in course of investigation such as Veena Oraon who guided the informant Lakhan Binjhiya and his brother Soma Binjhiya to search their mother at Deogami Sarna place near the river. There was no explanation as to how he had knowledge about the location of the dead body of Savitri Devi. Similarly, Matias Munda, Tara and Krishna were also not examined by him who could have thrown light on the circumstances wherein recovery of the dead body was made. 15. We find substance in the argument of the learned Counsel Mr. Sahu that the finding as recorded by P.W. 9 Dr. Tulsi Mahto was not corresponding to the manner of occurrence as alleged in the prosecution case or vice-versa. The Investigating Officer P.W. 8 Binod Kumar Singh at the time of preparation of the inquest report of the dead body did not find any injury on any part of it and in his deposition he fairly admitted that he did not find any cloth tied around the neck of the dead body but when the dead body of Savitri Devi was brought on the table of postmortem for examination the doctor found a sari tied around the neck with its knot over the left side of the neck and knot was fixed having no running noose. He found a ligature mark around the neck after removal of the ligature material which creates a doubt as to whether the dead body which was brought on the postmortem table actually belonged to Savitri Devi or not. On the other hand, we have reasons to believe that either the postmortem report is true or the inquest report prepared by the Investigating Officer in presence of the witnesses and that both are inconsistent to each other from which we can very fairly draw an inference that the occurrence did not take place in the manner presented by the prosecution. According to the informant P.W. 1 Lakhan Binjhiya the prosecution case was that her mother was heavily administered liquor by the accused persons as a result of which she could not be able to move properly but in the postmortem report her stomach as well as urinary bladder were found empty and there was no smelt of liquor or intoxicant from her viscera, This fact also does not support the prosecution case as according to the statement of the informant his mother died instantaneously and after death of a person the process of metabolism stops. 16. We, therefore, find that the facts and circumstances from which a conclusion of guilt of the appellants is sought to be drawn by the prosecution have not been fully and satisfactorily established beyond all reasonable doubts. We observe that the evidence on the record false short of proving the guilt of the appellants for the charge under Section 302/34 and 201 I.P.C. for which they have been convicted and sentenced. 17. In the result, the appeal succeeds. The judgment of conviction and order of sentence recorded against the appellants Dolka Pahan (Cr. Appeal No. 340/2000) & Hindu Pahan in (Cr. Appeal No. 246 of 2000) passed by the 7th Addl. Judicial Commissioner, Ranchi in Sessions Trial No. 19 of 1998/ S.T. No. 467 of 1998 are set aside. 18. The appellants are acquitted. Let the appellants be released forthwith if not wanted in any other case.