JUDGMENT : Dilip Kumar Sinha, J. The instant Cr. Appeal is directed against the judgment of conviction and order of sentence dated 10.07.2001 passed by Shri Binay Kumar Sinha, Additional Sessions Judge, Pakur in Sessions Case No. 138 of 1998/21 of 1998 by which the sole appellant was held guilty under part-II of Section 304 of the Indian Penal Code and was sentenced to undergo R.I. for a term of 5 years. 2. The prosecution story in short, as narrated by the informant Biren Dholi, was that his younger brother Ujjawal Dholi (since deceased) used to loiter around the village for the last 3/4 days like a lunatic and on the last Tuesday in such state of mind, he at random went to Hiranpur market. On the date of recording of his statement before the police i.e. on 22.08.1997, the informant was informed by one Doctor Noor of Hiranpur at about 7 a.m. that his brother Ujjawal Dholi was done to death by sorne unknown person at Hiranpur market. Pursuant to such information, he went to Hiranpur and found his brother Ujjawal Dholi dead under a Dhela tree opposite the house of the appellant Dhuni Marandi @ Lichri Marandi and there were ligature marks on the limbs and waist of the deceased appeared to be caused by rope. The informant gathered from the people that his brother was tied with the tree with the help of rope by the appellant and two other persons in the night, as a result of which, he died. On the statement of the informant Biren Dholi, Hiranpur P.S. Case No. 37 of 1997 was registered against the appellant Dhuni Marandi @ Lichri Marandi and others. After investigation, the Investigating Officer submitted charge-sheet only against the appellant Dhuni Marandi @ Lichri Marandi as the identity of other accused could not be established. The appellant was put on trial after charge was framed against her for the offence alleged under part-II of Section 304 of the Indian Penal Code. 3. As many as 9 witnesses were produced and examined on behalf of the prosecution and the appellant produced three witnesses in her defence. In her statement recorded u/s 313 Code of Criminal Procedure she pleaded innocence, implicated falsely at the instance of the villagers and she further pleaded land dispute with the informant of the case. 4. Mr. 3. As many as 9 witnesses were produced and examined on behalf of the prosecution and the appellant produced three witnesses in her defence. In her statement recorded u/s 313 Code of Criminal Procedure she pleaded innocence, implicated falsely at the instance of the villagers and she further pleaded land dispute with the informant of the case. 4. Mr. Shamim Alditar, learned Counsel appearing for the appellant submitted that the deceased Ujjawal Dholi was a lunatic and he was moving around different villages at random. The villagers of Hiranpur Bajar were not acquainted with the whereabouts of the deceased. The appellant had also no knowledge as to from where the deceased belong to and that she had no connection whatsoever with the deceased. There was no eye-witness of the occurrence and the chain of circumstances could not be completed around the appellant by the prosecution so as to establish the guilt of the appellant for the alleged charge. It was stated that the appellant had confessed her guilt in presence of the witnesses and the police pursuant to such confession discovered the pieces of rope from a ditch, kept concealed under water alleged to be used in tying the victim. But such reveletion and discovery thereof though is relevant u/s 27 of the Evidence Act but such fact could neither be corroborated by material witness nor did not suggest that the appellant herself tied the deceased with the knowledge that her such act may cause his death. 5. The medical evidence of P.W. 8 (Dr. Bindhu Bhushan), who had held postmortem examination on the dead body of Ujjawal Dholi is not in consonance with the evidence with the evidence of the prosecution witnesses. The definite case of the prosecution, according to the informant and other witnesses was that Ujjawal Dholi was tied with the Dhela tree with the help of rope in the previous night, as a result of which, he found dead in the morning. Contrary to that P.W. 1 Dhena Basky, P.W. 2 Govind Basky and P.W. 3 Sadhan Basky were consistent in their testimony that when they came to learn that a lunatic was tied by unknown person with the Dhela tree, they immediately went there and .found that limbs and waist of that lunatic tied with a fine rope where the appellant amongst the villagers was also there. The appellant when called upon admitted that she had tied the person with the tree as he had been teasing her in the night but she refused to untie him from rope. The lunatic was demanding water and pursuant to that P.W. 2 Govind Basky and P.W. 3 Sadhan Basky carried water and administered after the lunatic was taken out from the tree after untying his rope. At that time the deceased was alive when the witnesses had left the place. It was further consistently testified that as the lunatic was unable to sit down, he was laid down on the earth and thereafter the witnesses returned back. 6. Mr. Akhtar, learned Counsel submitted that the cause of death in the autopsy of the deceased was found to be throttling due to strangulation of the deceased which was never the case of the prosecution. The witnesses were consistent that the body of the lunatic was tied at three places viz. all the four limbs and his waist and not at any other place. The informant in his testimony corroborated that he also found ligature marks on such parts of body and no violence of any kind or mark was visible on the neck of the deceased. The lunatic (deceased) was found alive till the morning of 22.08.1997 and his autopsy was held on the same day at about 3.30 p.m. Time elapsed since death till postmortem was assessed about 20 hours and therefore, according to the learned Counsel, the lunatic had died at about 7 p.m. on 21.08.1997 and not in the morning of 22.08.1997. Therefore, the occurrence did not take place in the manner presented by the prosecution and on the credibility of the testimony of P.W. 1, 2 & 3 is questionable. The evidence of the other witnesses does not implicate the appellant in any manner. The case was instituted against the appellant and unknown but the charge-sheet could be submitted only against the appellant by disclosing the fact that the identity of other accused could not be established. The prosecution failed to prove the alleged role played by the appellant in the alleged offence. The case was instituted against the appellant and unknown but the charge-sheet could be submitted only against the appellant by disclosing the fact that the identity of other accused could not be established. The prosecution failed to prove the alleged role played by the appellant in the alleged offence. Even the charge was framed under part-II of Section 304 of the Indian Penal Code simplicitor against the appellant which was not maintainable in view of the materials in the case diary and it was not practically possible for a girl aged about 22 years to tie a strong young man with a tree with the help of rope around his chest, waist and limbs and that no ligature mark was found on the neck when the informant visited and examined the dead body of his brother. 7. Mr. Akhtar, the learned Counsel assailed the impugned judgment on the ground that the appellant was convicted only on the ground of her confessional statement leading to discovery of small pieces of ropes which cannot be a relevant fact as with the help of such small pieces of rope on elderly person cannot be tied. In her extrajudicial confession before P.W. 1, P.W. 2 and P.W. 3 she admitted having tied the lunatic as he had teased her in the night but she never stated in either of her statements that she committed murder. The witnesses such as P.W. 1, 2 & 3 admitted that the lunatic was alive when they had visited the place of occurrence and that the appellant was also present there whereas, according to the postmortem report he would have died in the previous night around 7 p.m. 8. Learned A.P.P. opposed the contention and submitted that a strong circumstance is created against the appellant based upon her confessional statement before the police and her extrajudicial confession before the witnesses and the latter deposed in the Court that she admitted having tied the lunatic in the night. But the learned A.P.P. failed to explain as to how the lunatic was found alive in the morning when according to the report he might have died in the previous night at about 7 p.m. 9. Having regard to the facts and circumstances of the case, I find that the prosecution failed to prove the charge under part-II of Section 304 of the Indian Penal Code beyond reasonable doubt. Having regard to the facts and circumstances of the case, I find that the prosecution failed to prove the charge under part-II of Section 304 of the Indian Penal Code beyond reasonable doubt. The ocular evidence of P.W. 1, 2 & 3 produced and adduced on behalf of the prosecution is not in consonance with the medical evidence adduced by P.W. 8 Dr. Bindu Bhushan. Admittedly, there is no eye-witness of the occurrence and the chain of circumstances that has been demonstrated by the prosecution in the instant case is not complete so as to inflict the conviction for the alleged charge and the Trial Court failed to appreciate and the prosecution miserably failed to prove that it was appellant alone who tied the lunatic with such intention in the previous night that her such act may cause his death to attract the offence under part-II of Section 304 I.P.C. I, therefore, find that the materials produced by the prosecution on the record were not sufficient to hold her guilty for the alleged charge. 10. In the circumstances, the appellant Dhuni Marandi @ Lichri Marandi is acquitted in the instant case arising out of Hiranpur P.S. Case No. 37 of 1997 corresponding to G.R. No. 312 of 1997. Her bail bond stands discharged. Accordingly, this appeal is allowed. Appeal allowed.