JUDGMENT By Court.- The appellants have challenged their judgment of conviction and order of sentence dated 23.3.2000 and 25.3.2000 respectively passed by 7th Additional Judicial Commissioner, Ranchi in S.T. No. 40 of 1998/S.T. No. 408 of 1998 whereby and whereunder they have been convicted under Section 302/34 of the IPC and also under Section 201 of the IPC. They were sentenced to undergo imprisonment for life for the offence under Section 302/34 of the IPC and further sentenced to undergo R.I. for 7 years under Section 201 of the IPC. 2. As both the appeals arose from the same judgment of court below, therefore they heard together and are being disposed of by this common judgment. 3. The prosecution was launched on the basis of fardbeyan of Mangra Bhagat (P.W.8) brother of the deceased dated 2.4,1997. 4. The prosecution case, in brief is that the brother of informant, Budhu Bhagat was in love with Sumri Kumari, sister of Suresh Oraon (Appellant in Cr. A. 120 of 2000). In connection with the said love affair, deceased frequently visited the house of Sumari Kumari on being called by her. The aforesaid love affair was in the knowledge of appellant Suresh Oraon, who threatened that either deceased would discontinue meeting with his sister or he would be killed. On 23.3.1997 in the evening, appellants Suresh Oraon and Bandhana Oraon came and took deceased with them. When in the night deceased did not return, on the next day they searched him, -In course of that they made query from Suresh Oraon and Bandhana Oraon but they did not give any satisfactory answer. Thereafter the informant and other inmates of his family searched his brother (deceased) including the places of their relative, but they could not tress him out. In the morning on 2.4.1997 three pieces of paper were found in front of the door of the informant and on the basis of content of the said letter they alongwith other villagers searched his brother. Thereafter they found the dead .body of deceased on the bank of Koyal River, which was buried under the sand. Accordingly, informant suspected that his brother Budhu Bhagat had been killed by the appellants. 5. On the basis of said fardbeyan police registered case under Sections 302, 201/34 of the IPC against the appellant and after conclusion of investigation police submitted charge-sheet against the appellants. 6. Accordingly, informant suspected that his brother Budhu Bhagat had been killed by the appellants. 5. On the basis of said fardbeyan police registered case under Sections 302, 201/34 of the IPC against the appellant and after conclusion of investigation police submitted charge-sheet against the appellants. 6. Charges were framed against the appellants under Sections 302/34 and 201 of the IPC. The appellants denied the charge and they claimed to be tried. They were put on trial. 7. Prosecution in order to establish the charge against the appellant altogether examined 10 witnesses. The prosecution had also brought on record Ext.-1 series the signatures of witnesses on inquest report and production-cum-seizure list, Ext.-2 Series-three letters. Ext.-3-Fardbeyan, Ext.4-the FIR, Ext.-5-the seizure list, Ext.-6 the inquest report and Ext.-1-the P.M. Report. 8. The statement of the appellants were recorded under Section 313 of the Cr.P.C. in which their defence is of total denial. 9. Learned trial court on conclusion of the trial convicted and sentenced the appellants by the impugned judgment against that the present appeals has been filed. 10. Learned counsel for the appellants has assailed the impugned judgment of court below and submitted that there is no eye witness of the occurrence. The entire case of prosecution is based on circumstantial evidence. The prosecution had tried to prove the case against these appellants on the basis of three circumstances. Firstly the deceased had love affair with the sister of appellant Suresh Oraon, secondly both the appellants had taken away the deceased from his house in the evening of Holika Dahan on some allurement and thirdly three letters (Ext.-2' series) were found at the door of informant, which reveals that the deceased had been killed by these appellants. He further submitted that prosecution has not been able to prove the aforesaid three circumstances beyond the shadow of all reasonable doubt. Apart from informant (P.W. 8), none of the prosecution witness including the mother of deceased (P.W. 5) had stated in her deposition that sister of Suresh Oraon had love affair with deceased. So far calling of deceased from his house is concerned the same has not been proved beyond the shadow of all reasonable doubt and the statement of witnesses in this respect is contradictory. Content of three letters (Ext.-2 series) has not been proved nor it has been proved as to who had written the said letters. So far calling of deceased from his house is concerned the same has not been proved beyond the shadow of all reasonable doubt and the statement of witnesses in this respect is contradictory. Content of three letters (Ext.-2 series) has not been proved nor it has been proved as to who had written the said letters. Under the said circumstance, the learned court below had committed serious illegality in considering the content of said letters for convicting the appellants. Learned counsel submitted that the prosecution had not been able to prove the circumstances beyond the shadow of all reasonable doubt. The judgment of conviction and order of sentence passed by the court below suffers from serious legal infirmities and are not sustainable. 11. On the other hand, learned Additional P.P. supported the judgment of the court below and submitted that there are strong circumstances against the appellants from which it can be presumed that the appellants and none-else had committed the present crime. P.W. 5 (mother of deceased) and P.W. 8 (informant) had categorically stated that on 23.3.1997 in the evening both the appellants came and took away deceased Budhu Bhagat on some allurement. Thereafter, Budhu Bhagat has not been seen alive and his dead body was recovered from the bank of Koyal River. Ext.-2 series also shows that the murder of deceased was committed by these appellants. FIR as well as the statements of P.W. 8 shows that appellants Suresh Oraon had threatened to kill the deceased as he had love affair with his sister. Hence, Suresh Oraon had motive for committing the present crime. Appellant Bandhana Oraon is friend of Suresh Oraon. On the basis of aforesaid submission, learned Additional P.P. submitted that there is no illegality or irregularity In the impugned judgment of the court below which require any interference by this court. 12. Having heard the learned counsel for the appellant and learned APP, we scrutinized the materials available• on record. P.W.1 Jhirga Oraon is the Sarpanch of the village. He is hearsay on the point of occurrence. However he states that three letters have been shown to him and on the basis of three letters the dead body of deceased was recovered from the bank of Koyal River. He has also proved his signature on the inquest report. He had also proved the three letters which were marked as Ext.-2 series. However he states that three letters have been shown to him and on the basis of three letters the dead body of deceased was recovered from the bank of Koyal River. He has also proved his signature on the inquest report. He had also proved the three letters which were marked as Ext.-2 series. P.W.2 Julias Tappa, a co-villager is a witness of recovery of dead body. P.W.3 Turia Oraon had also stated that the dead body was recovered in his presence and police officer prepared seizure list of the three letters in his presence on which he put his LTI. P.W. 4 Fagu Oraon is also a witness of recovery of dead body. P.W. 5 Tetari Bhagatain is the mother of deceased. She states that these appellants took away the deceased on the day of Holika Dahan in the evening and thereafter deceased did not return, after 10 days his dead body was recovered. P.W.6 Bigua Tanabhagat is a witness of recovery of dead body of deceased. P.W. 7 Bandhana Bhagat is the maternal brother of deceased. He states that P.W. 5 came to his village in search of deceased. P.W. 8 Mangra Bhagat is the informant of this case and he had given the same statements as stated in the FIR. P.W. 9 is the 10. who has proved signature of informant on FIR. He also proved FIR, inquest report and seizure list. P.W.10 Dr. Saroj Kumar is the doctor who held autopsy on the dead body of deceased. 13. P W. 10 Dr. Saroj Kumar had deposed that on 3.4.1997 he conducted post mortem examination on the dead body of deceased Budhu Bhagat and found following injuries: i. Incised wound 7 x 2 cm x bone deep on left occipital region of head cutting the underline bone completely. ii. Incised wound 5 x 1 cm x scalp deep on right occipital region of head cutting the underline bone partially. iii. Incised wound 6 x 2 cm x bone deep on left occipital parital region of head with chipping of underline bone. iv. Incised wound 5 x 1 cm x bone deep on left frontal region of head cutting the underline bone and brain matter. Internally- There was presence of blood in the cranial cavity mixed with signified brain matter. iii. Incised wound 6 x 2 cm x bone deep on left occipital parital region of head with chipping of underline bone. iv. Incised wound 5 x 1 cm x bone deep on left frontal region of head cutting the underline bone and brain matter. Internally- There was presence of blood in the cranial cavity mixed with signified brain matter. There was fracture of left second to fifth rib and right second to 4th rib with laceration of left lung and presence of blood and blood clot in left chest cavity. The doctor had given opinion that injuries were ante mortem in nature. He further opined that all the incised wound were caused by heavy sharp cutting weapon whereas the injury on the chest was caused by hard and blunt substance. According to the doctor time elapsed since death is about 1 to 2 weeks from the time of post mortem examination. From the perusal of the cross-examination of P.W. 10. we find that the defence had not challenged his opinion regarding the cause of death. Thus, it has been established by the prosecution that deceased Budhu Bhagat had died because of the injuries sustained by him. 14. Now the question arose for determination as to whether these appellants had any hand in the commission of present crime? As noticed above in the instant case there is no eye witness of the occurrence. The entire case of prosecution is based upon the circumstantial evidence. From the perusal of the record, 'we find that the prosecution had tried to prove the guilt of these appellants on the basis of following circumstances:- (i) The appellant Suresh Ora on and Bandhana Oraon took Budhu Bhagat (deceased) on 23.3.1997 In the evening at about 6 p.m. from his house on some allurement and thereafter deceased Budhu Bhagat had not been seen alive. (ii) Three letters (Ext.-2 series) found in front of the door of informant, the contents of which reveal that these appellants had committed the murder of deceased and buried his dead body on the bank of Koyal River. Thereafter on the basis of the said letter the dead body recovered. (iii) Suresh Oraon had threatened to kill the deceased because he had love affair with his sister Sumri Kumari. For proving the first circumstance', the prosecution heavily relied upon the evidence of P.W. 5 Tetari Bhagatain and P.W. 8 Mangra Bhagat. Thereafter on the basis of the said letter the dead body recovered. (iii) Suresh Oraon had threatened to kill the deceased because he had love affair with his sister Sumri Kumari. For proving the first circumstance', the prosecution heavily relied upon the evidence of P.W. 5 Tetari Bhagatain and P.W. 8 Mangra Bhagat. Both these witnesses had stated that on 23.3.1997 in the evening at about 6 p.m., Suresh Oraon and Bandhana Oraon came to their house and took away Budhu Bhagat. They have stated that when Budhu Bhagat did not return in the night on the next day they searched Budhu Bhagat and in course of that they also made query from Suresh Oraon and Bandhana Oraon but their answer was not satisfactory. Their aforesaid statements does not find confidence in view of deposition of P.W. 5 at paragraph nos. 7, 8 and 9. She stated that in the evening of Holika Dahan she was present in her house alongwith her son Mangra and small children. Apart from them, none else was present. She further deposed that Bandhana Oraon and Suresh Oraon came to her house at 6.30 p.m.. She then states that at that time Budhu Bhagat was in his school. P.W. 8 at paragraph no. 54 of his deposition had stated that his brother was studying in Residential School. Sidrol, Ranchi. Under the said circumstance if the deceased Budhu Bhagat (deceased) was not present at the time of arrival of these appellants, then the question of going of deceased with these appellants does not arise. It is relevant to mention that apart from P.W.5 and P.W. 8 there is no other direct evidence to show that the deceased had accompanied these appellants on 23.3.1997. It is also worth to mention that P.W. 8 in his cross-examination had stated that appellant Suresh Oraon also helped him in searching the deceased. He went with the informant (P.W. 8) to different places including Sidrol School for searching the deceased. Since P.W. 5 had categorically stated that on the evening of Holika Dahan the deceased was not present in her house, therefore, we find that this circumstance has not been proved by the prosecution beyond the shadow of all reasonable doubts. He went with the informant (P.W. 8) to different places including Sidrol School for searching the deceased. Since P.W. 5 had categorically stated that on the evening of Holika Dahan the deceased was not present in her house, therefore, we find that this circumstance has not been proved by the prosecution beyond the shadow of all reasonable doubts. So far the second circumstance is concerned, in our considered view, the content of letters cannot be looked into, because all the prosecution witnesses categorically stated that they did not know who had written said letters. Thus the content of the said letters have not been proved. Therefore whatever written in that letter cannot become the basis for convicting the appellants. Hence, this circumstance is also not proved by the prosecution. Now coming to the 3rd circumstance, it is relevant to mention that apart from P.W. 8, no other witness had stated that the deceased Budhu Bhagat had love affair with the sister of appellant Suresh Oraon and Suresh Oraon had threatened to kill the deceased. Even the mother (P.W. 5) had not stated so. From perusal of evidence of P.W. 9 the Investigating Officer, we find that at paragraph no. 20 he had categorically stated that he had not recorded the statement of Sumri Kumari. In our view, for proving this circumstance, it was necessary for the Investigating Officer to record the statement of Sumri Kumari and also verify it from other villagers as to whether Budhu Bllagat had love affair with Sumri Kumari or not. Since no other witness had stated anything with regard to this fact, therefore, we are of the view that this circumstance has also not been proved by the prosecution beyond the shadow of all reasonable doubts. 15. It is well settled• that in a case of circumstantial evidence it is necessary for the prosecution to establish all the circumstance by cogent and acceptable evidence and if any of the circumstance is not established then the conviction of the appellant cannot be sustained. It appears that learned court below had convicted the appellants only taking into account that both the appellants took away the deceased Budhu Bhagat from his, house of 23.3.1997 and thereafter he did not return and later on his dead body was recovered. It appears that learned court below had convicted the appellants only taking into account that both the appellants took away the deceased Budhu Bhagat from his, house of 23.3.1997 and thereafter he did not return and later on his dead body was recovered. As noticed above, P.W. 5 herself stated that on 23.3.1997 at 6.30 p.m. when these appellants came to their house Budhu Bhagat (deceased) was not present in the house and he was in his school. Thus, in our view, the aforesaid circumstance is not established by the prosecution. therefore, the same cannot become the basis for conviction of the appellants. 16. In view of the discussions made above, we conclude that the impugned judgment of conviction and order of sentence suffers from material illegality/irregularity, thus the same cannot be sustained. 17. In the result. both the appeals allowed. The impugned judgment of conviction and order of sentence set aside. Both the appellants are acquitted of the charges levelled against them. It appears that both the appellants are on bail, they are discharged from the liability of their bail bond.