JUDGMENT Madan B. Lokur, C.J. 1. The Appellants are aggrieved by the judgment and sentence passed by the learned District & Sessions Judge, South Tripura, Udaipur, in Case No. S.T. 85(ST/S) of 2004 convicting them of an offence under Section 302 of the Indian Penal Code. 2. Heard Mr. R. Dutta, learned Counsel appearing for the Appellants and Mr. D. Sarkar, learned Public Prosecutor for the State-Respondent. 3. The First Information Report (FIR) lodged by the father of Jatindra Tripura (deceased) on 12.06.2004 was that the deceased had left the house the previous night and had not returned home. The next morning (12.06.2004), his body was found, with his throat slit, in the field towards the right hand side/southern side of Amlighat road from Manughat. 4. On the basis of the information received, the Investigating Officer conducted investigations and thereafter filed a charge-sheet in which it was alleged that the offence of murder was committed by Ranjan Tripura and Nayan Tripura, who are the Appellants before us. 5. Before the learned Sessions Judge, the prosecution examined as many as 12 witnesses. In the judgment under appeal, the learned Sessions Judge has relied on the testimony of PW.5, Smti Pancha Laxmi Tripura i.e. the wife of the younger brother of the deceased, PW.7, Smti Juddha Laxmi Tripura i.e. the first wife of the deceased and PW.8, Smti Santi Mala Tripura i.e. the second wife of the deceased for the purposes of convicting the Appellants. The learned Sessions Judge has also relied on the statement of PW.10 i.e. Shri Dayal Hari Tripura given under Section 161 of the Code of Criminal Procedure. It may be mentioned though that this person turned hostile during the course of oral examination on oath. 6. Learned Counsel for the parties have taken us through the evidence as well as through the impugned judgment and sentence passed by the learned Sessions Judge. 7. The case made out by the prosecution is that the deceased was carrying out some supernatural acts akin to witchcraft. As a result of his activities, some people of the locality had died. It was alleged that the pregnant wife of Ranjan Tripura had also died as a result of these activities. Further, it was brought out that there was some unpleasant incident during the Garia Puja when Ranjan Tripura (one of the Appellants) had an argument with the father of the deceased. It was alleged that the pregnant wife of Ranjan Tripura had also died as a result of these activities. Further, it was brought out that there was some unpleasant incident during the Garia Puja when Ranjan Tripura (one of the Appellants) had an argument with the father of the deceased. It was the case of the prosecution that this prompted the murder of the deceased. 8. During the course of investigations, none of the three ladies mentioned above i.e. P Ws. 5, 7 and 8 gave any indication that they suspected the accused of having committed the murder. However, when they entered the witness box, they said that Nayan Tripura (one of the Appellants) had threatened to kill the deceased because of he committed supernatural acts, as a result of which some people in the locality had died. All three witnesses stated that the evening before the dead body of the deceased was found, both Nayan Tripura and Ranjan Tripura had come to the residence of the said three witnesses (who were living jointly) and they enquired of the whereabouts of the deceased. The Appellants were informed that the deceased had gone to the market to purchase kerosene oil, whereafter they left. The next day, the dead body of the deceased was found. 9. Admittedly, there was no witness to the crime and as the learned Public Prosecutor has frankly admitted, there is also no theory of "last seen together" propounded by the prosecution. The entire case of the prosecution rests on the theory that Nayan Tripura had allegedly threatened to kill the deceased because of his practising supernatural acts and the unpleasant incident that occurred during Garia Puja. 10. In our opinion, the mere fact that the Appellants had enquired of the whereabouts of the deceased the evening before cannot lead to a conclusion that they were responsible were responsible for the murder of the deceased. In our opinion, in a serious crime of this nature, we cannot proceed on the basis of presumptions and we also cannot rely on some unverified and unsubstantiated enmity, based on the commission of supernatural acts and an argument between one of the Appellants and the father of the deceased. 11. As far as the testimony of the three ladies is concerned, it does not inspire much confidence. 11. As far as the testimony of the three ladies is concerned, it does not inspire much confidence. During investigations, they did not voice any suspicion about the involvement of the Appellants in the crime nor did they cast any doubt on the activities of the accused. Their oral evidence appears to be an afterthought, and is not supported even by the statement of the father of the deceased. 12. The learned Sessions Judge has also relied upon the testimony of PW.10 i.e. Sri Dayal Hari Tripura. It may be noted, as mentioned above, that the statement of this witness was earlier recorded under Section 161 Code of Criminal Procedure But during his oral evidence in the witness box, he was declared hostile by the prosecution. According to this witness, he was assaulted by the police and he was forced to give a statement implicating the Appellants. In his statement given under Section 161 Cr.P.C., this witness stated that Ranjan Tripura (one of the Appellants) had asked him (the witness) to join him in murdering Jatindra Tripura but he declined. Even after the dead body of the deceased was found, there was a conversation between this witness and Ranjan Tripura in which Ranjan Tripura admitted to the witness that he had murdered Jatindra Tripura. 13. The learned Sessions Judge has proceeded on the basis that the Investigating Officer had no motive in recording a false statement of PW.10. The learned Sessions Judge then concluded that since the Investigating Officer has correctly recorded the statement of PW.10, in which he said that Ranjan Tripura had confessed to having killed the deceased, this witness was reliable, and so his statement could be believed. Unfortunately, the learned Sessions Judge completely overlooked the fact that this witness stated on oath that he was assaulted by the police and was forced to give a statement implicating Ranjan Tripura. The evidence on record was not correctly appreciated by the learned Sessions Judge. 14. We may mention that nowhere in the investigations or even in the examination of P Ws. 5, 7 and 8 was there was any mention of the involvement of PW.10 or the mention of any misunderstanding between him and Jatindra Tripura, such that he could be persuaded to murder him. 15. In our opinion, the evidence on record is insufficient to convict any of the Appellants. 5, 7 and 8 was there was any mention of the involvement of PW.10 or the mention of any misunderstanding between him and Jatindra Tripura, such that he could be persuaded to murder him. 15. In our opinion, the evidence on record is insufficient to convict any of the Appellants. There is no conclusive evidence to corroborate the theory put forward by the prosecution, nor is there any material to come to the firm conclusion that the death of the deceased was caused by the Appellants before us. We cannot uphold the conviction of the Appellants on the basis of unsubstantiated material. 16. Under the circumstances, we set aside the impugned judgment and sentence dated 30th September, 2005 passed by the learned District & Sessions Judge, South Tripura, Udaipur, in Case No. S.T.85(ST/S) of 2004. The Appellants are set at liberty forthwith, if they are not required in any other case.