JUDGMENT By Court: The appellant was put on trial along with seven other accused persons for committing murder of Ganeshwar Paik. The learned trial court having found all the accused persons guilty for the offence under section 302/34 of the Indian Penal Code sentenced each of them to undergo imprisonment for life. The case of the prosecution is that on 13.10.1998 at about 6.p.m. the deceased Ganeshwar Paik as well as his brothers Jitendra Paik, (P.W.2) and Prasanna Paik (not examined) left Mangal Bazar, Anandpur for coming to village home. When they reached at a place called ‘Bhaldungri’, the deceased Ganeshwar Paik took another route via Satamri to come to his village whereas the informant Jitendra Paik and his brother Prasanna Paik proceeded to his village on by-cycle through main road. When they proceeded from there, they saw the accused Shashi Naik and Kalindar Naik there, who on seeing the deceased Ganeshwar Paik going to his village left that place hurriedly. Thereupon the informant and his brother followed them. When they reached near an orchard of Bandhu Mukhia, they saw aforesaid two persons sitting with other six accused persons who were armed with arrow and bow as well as tangi. There the informant heard the aforesaid two persons saying to other accused persons that the deceased is going home via Satamri. Upon it, all the persons left that place and he and his brother left home so that they may come back again with bow and arrow but when they proceeded ahead to some distance, they heard the sound of screaming of the brother. Upon it they came to the place of occurrence, where they found their brother dead as he had been beheaded by the accused persons who after seeing them coming, left that place. On the same day at about midnight when Officer-in-Charge of Anandpur Police Station received rumour that some person had been done to death at village Chirumatta , he came to the place of occurrence at about 5 a.m. on the next day, i.e, 14.10.1998 where he recorded the Fardbeyan (Ext.4) of the informant Jitendra Paik (P.W.2), who stated about the occurrence in the manner, as stated above. P.W.2 also stated about the motive wherein it was disclosed that his nephew Demodar Paik had been taken by Etwa Pradhan and Lambu Paik to Punjab to earn livelihood but he did not return, though Etwa Pradhan and Lambu Paik came back to the village and for that, a Panchayati was convened so that both the persons be compelled to bring back his nephew. That apart, the informant divulged that there had been some land dispute also. Upon the said Fardbeyan, case was registered and a formal first information report (Ext.6) was drawn. The Investigating Officer after recording the Fardbeyan held inquest in presence of Garjan Paik ( P.W.1) and Ram Kishore Pradhan on the dead body and prepared a inquest report (Ext.3). Thereafter the dead body was sent for post mortem examination which was done by Dr. Vijay Kumar Singh (P.W.5), who in course of autopsy found head and upper portion of neck completely separated from the rest of the body. Post mortem report has been proved by the Doctor as Ext.7. The Investigation Officer also seized earth smeared with blood as well as two arrows from the place of occurrence under seizure list (Ext.5) and then recorded the statements of witnesses. After completion of investigation, police submitted charge sheet against this appellant as well as seven other accused persons. On committal of the case, charges were framed to which all the accused persons pleaded not guilty and claimed to be tried. In course of trial, the prosecution has examined as many as five witnesses. Of them, P.W. 2, Jitendra Paik, the informant and P.W.3, Parwati Devi, widow of the deceased, claimed themselves tobe the eye witnesses, though according to Fardbeyan,neither P.W.2 nor P.W.3 are the eye witness nor the P.W.3 had accompanied the deceased, still the trial court on believing the versions of P.W.2 and P.W.3 did find this appellant and other accused guilty of committing murder of Ganeshwar Paik. On being convicted and sentenced, all the other co-convicts filed Criminal Appeal, bearing Cr.App.(D.B) No.387 of 2000 (R), Cr.App.(D.B) No.431 of 2000 (R) and Cr.App.(D.B) No.426 of 2000. This Court after hearing the parties acquitted all of them as neither P.W.2 nor P.W.3 were found to be trustworthy. Much after the acquittal of all the co-convicts, this appellant preferred Jail appeal wherein one Pramod Kumar Choudhary, Advocate was appointed as amicus curiae to assist the Court. This Court after hearing the parties acquitted all of them as neither P.W.2 nor P.W.3 were found to be trustworthy. Much after the acquittal of all the co-convicts, this appellant preferred Jail appeal wherein one Pramod Kumar Choudhary, Advocate was appointed as amicus curiae to assist the Court. Learned counsel appearing for the appellant submits that though P.W.2, the informant in course of trial claimed to have seen the occurrence but earlier statement made by this witness upon which first information report was drawn clearly shows that he was never the eye witness and that P.W.2 in his Fardbeyan has never stated about the presence of P.W.3 at the place of occurrence but P.W.3 claimed to have been returning with the deceased from the market and saw the accused persons committing murder and under this situation, testimonies of those two witnesses cannot be believed but the trial court has failed to appreciate this aspect of the matter and hence, committed a grave error in recording the judgment of conviction and order of sentence against this appellant and also against the other co-convicts, who have already been acquitted by this Court. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that initially the case, as had been projected by the P.W.2 in his Fardbeyan, is that in course of coming home, they found all the accused persons near an orchard, who on coming to know that Ganeshwar Paik has been going home, they left that place hurriedly and he (informant) and his brother left home as they were bare handed but after going ahead to some distance, they heard sound of screaming of his brother and when they came over there, they saw the deceased beheaded and claimed to have seen the accused fleeing away but in course of his evidence he projected himself to be an eye witness wherein he has testified that when the accused persons accosted his brother, the accused Sashi Naik and Kalindar Naik shot arrows upon the deceased who on being hit by it, fell down and upon it, the accused Kale Pradhan, Lambu Paik and this appellant cut the neck of the deceased but the medical evidence never lends support to the testimony of this witness as the doctor has never found any injury caused by arrow. Similar is the testimony of P.W.3, who is none other than widow of the deceased. According to this witness, while she was returning with her husband (deceased) from the market, the accused persons accosted her husband in the way and cut the neck but P.W.2 has never stated in his Fardbeyan that she had ever accompanied her husband. That apart, P.W.3 in her earlier statement made under section 161 of the Code of Criminal Procedure never seems to have made statement as has been deposed by her in the court, rather she seems to have stated before the police that in the evening when she heard screaming sound, she went there and found her husband dead. This witness in her cross-examination has also stated that when she reached at the place of occurrence, she raised alarm and then P.W.2 came but by the time he reached at the place of occurrence, accused persons had already left that place which fact clearly indicates that P.W.2 had no occasion to see the accused persons fleeing away. Therefore, any claim made by P.W.2 of identifying the accused persons certainly appears to be after thought. It gets strengthened from the fact that P.W.2, as per his evidence had left Mangal Bazar along with the deceased at 6 p.m. in the evening of the month of October which as per the evidence of Investigation Officer is about 5 k.m. away from the place of occurrence and, therefore, by the time the informant could have reached the place of occurrence it would have been quite dark as it was the month of October which fact completely rules out of any possibility of identification of the accused by P.W.2. Under these situations, neither P.W.2 nor P.W.3 appears to be trustworthy but still the trial court has recorded the judgment of conviction and order of sentence on placing implicit reliance on the testimonies of these two witnesses and hence, the judgment of conviction and order of sentence passed by the trial court is hereby set aside. Consequently the appellant is acquitted. In the result, this appeal is allowed and the appellant is directed to be released forthwith, if not wanted in any other case.