JUDGMENT Poonam Srivastav D.N. Upadhyay,JJ. – Mr. Sudhanshu Kumar Deo, Advocate has appeared in the instant appeal as Amicus Curiae. 2. The instant Criminal Appeal is preferred on behalf of the sole appellant Balu Mian @ Sheikh Bablu, who has been convicted under Section 302 read with Section 201 I.P.C. in Sessions Case No.077/2003 State of Jharkhand Vrs. Balu Mian @ Sheikh Bablu & Anr. 3. The sentence awarded under Section 302 I.P.C. is life imprisonment and under Section 201 I.P.C. is seven years rigorous imprisonment. Both the sentences were directed to run concurrently by the Sessions Judge, Dumka vide judgment and order dated 16th March, 2004. It is a case of circumstantial evidence. 4. The prosecution story in short is that the informant Chhatish Murmu, resident of village Dhopahar under Police Station Shikaripara, District Dumka gave his fardbayan before the officer in charge at the Police Station on 18th August, 2002 at 9 p.m. The statement was to the effect that on the same day i.e. on 18th August, 2002 at about 4 p.m. when he had gone to watch water level in his field, he found a male dead body aged about 2025 years lying in a ditch and also found a black full pant completely drenched in the mud by his side. The informant came back in the village and informed the villagers, namely, Hopana Murmu, Khogo Rana, Pran Marandi, Okil Hansda and others. All rushed to the place where the dead body was lying and took out the dead body from the ditch and it was sent to the Police Station. A Keshari coloured thread was tied around his neck. The dead body could not be identified. The police registered a case bearing Shikaripara P.S. Case No.55 of 2002 on the basis of the Fard Bayan and the F.I.R. Ext. 6 was registered under Sections 2. 302/201 read with Section 34 I.P.C. against unknown assailants. Charge-sheet was submitted under Sections 302/201/120B I.P.C. as also under Sections 379/411 against the appellant Balu Mian @ Sheikh Bablu and Samar Ghosh. The third accused Sardar Mian @ Mazid Mian was also found to be involved in the crime but the charge-sheet was filed against him as an absconder. 5. Prosecution examined 11 witnesses P.W. 1 Chhatish Murmu, who is the first informant of the case, P.W.2 Dr. The third accused Sardar Mian @ Mazid Mian was also found to be involved in the crime but the charge-sheet was filed against him as an absconder. 5. Prosecution examined 11 witnesses P.W. 1 Chhatish Murmu, who is the first informant of the case, P.W.2 Dr. Dina Nath Pandey, P.W. 3 Kishore Saha, P.W. 4 Azad Ansari, P.W. 5 Sakur Ansari, who has been declared hostile, P.W. 6 Mina Pal, P.W. 7 Namita Pal, P.W. 8 Ajit Kumar Pal, P.W. 9 Biswanath Pal, P.W. 10 Pankaj Kumar, who is the Investigating Officer, and P.W. 11 Dr. Madan Mohan Jaiswal is the Executive Magistrate, who conducted the Test Identification Parade of the articles belonging to the deceased. 6. The prosecution exhibited signature of the informant as Ext. 1; signature of Hopna Murmu on the Fard Bayan, Ext. 1/1; postmortem report, Ext. 2; signature of P.W. 4 Azad Ansari on the seizure list Ext. 3; signature of P.W. 5 Sakur Ansari, Ext. 3/1; signature of P.W. 8 Ajit Kumar Pal on the T.I.P. chart, Ext. 4 and signature of Shankar Ram on the fard bayan Ext. 5 and on the F.I.R. Ext. 6; Inquest Report, Ext. 7 and two photographs, Ext. 10 and 10/1 and Test Identification Parade chart of articles as Ext. 9. Dr. Dina Nath Pandey conducted the postmortem and found the following injuries on his body : - "Ligature mark 3/4" wide in the form of a groove, dark coloured with ecchymosis of margins placed horizontally below thyroid cartilage and complete. On dissection the neck muscles under the skin were found bruised with extra vasation of blood. On further dissection upper three tracheal rings were found fractured, trachea and larynx were filled with frothy blood stained mucous. On deeper dissection there was bruise and congestion around carrotive vessels." 7. There is no direct evidence. However, it was P.W. 3 who disclosed that the appellant was last seen along with the co-accused Sardar Mian in the train while he was going from Burdwan to Bihar. Autopsy was conducted on the body of the deceased as an unidentified person. It was at a subsequent stage that P.W. 3 identified him as Bapi @ Snehashish Pal. The parents and the sister were informed about the incident and 3. subsequently recovery of a wrist watch and 'Lungi' was made from the house of the appellant. Autopsy was conducted on the body of the deceased as an unidentified person. It was at a subsequent stage that P.W. 3 identified him as Bapi @ Snehashish Pal. The parents and the sister were informed about the incident and 3. subsequently recovery of a wrist watch and 'Lungi' was made from the house of the appellant. Co-accused Samar Ghosh, who also faced trial, has been acquitted. The Trial Court has placed reliance on the evidence of P.W. 3, P.W.6 & P.W. 8 to arrive at a conclusion that the deceased was seen alive lastly along with the accused and therefore the evidence of last seen is substantiated by the recovery made from the house of the appellant and recorded the judgment of conviction. P.W. 3 Kishore Saha is a resident of Sakhara, P.S. Bhatar, DistrictBurdawan (West Bengal). He had met the deceased on a train while he was coming from Burdawan to Bihar and he was accompanied by the coaccused. He further stated that Bapi had requested Kishore Saha ( P.W. 3) not to disclose that he had gone to Bihar because he had not informed anyone in the house. However, the family members of the deceased P.W. 6 (Mina Pal), who is the mother, has stated that his son was involved in the business of hardware and had gone to Bihar to procure certain articles and he carried cash to a tune of Rs.20,000/. She received information after one month nine days when her son had not returned home. The mother has given the details of the absence of the deceased, who is said to have gone to Bihar. The Hardware shop was situated near the Bus Stand in the village Nutan Gram and the accused Balu Mian was known to her son before the incident and therefore it was concluded by the court below as direct evidence against the accused who was facing trial. The Court held that the son of the witness accompanied the appellant and the other co-accused. 8. Learned Counsel appearing as amicus curiae has castigated prosecution story without any foundation. The implication of appellant is argued to be only on basis of suspicion. The submission is that circumstances relied upon by the trial court are farfetched and fail to complete the link and connect the incidents to reach an irresistable conclusion and verdict to hold guilty. 8. Learned Counsel appearing as amicus curiae has castigated prosecution story without any foundation. The implication of appellant is argued to be only on basis of suspicion. The submission is that circumstances relied upon by the trial court are farfetched and fail to complete the link and connect the incidents to reach an irresistable conclusion and verdict to hold guilty. However, we have assessed the evidence of the witnesses and gone through the record. It is obviously a case where the evidence is only of last seen and the recovery of watch and 'Lungi' from the house of appellant which is a recovery under Section 27 of the Evidence Act. After scrutinizing the entire evidence, we are of the considered view that it is only P.W. 3 Kishore Saha, who has for the first time disclosed identity of the deceased and that too after a long lapse of time. The F.I.R. was registered against unknown person. Postmortem was 4. conducted on an unidentified body and identification of the deceased was fixed only from his photograph. P.W. 3 identified and that too at a subsequent date. It was at a later date disclosed that the deceased was seen along with the appellant. No doubt there is admission by the appellant before the police that he had known the deceased since before but this itself is not sufficient to come to a decision that the prosecution has substantiated the guilt against the appellant beyond all reasonable doubt. The chain of evidence required to bring home the guilt and fix the commission of crime is completely missing in the instant case. The investigation is also full of loopholes and lacunas, there is nothing to give a clear indication that the circumstances of the present case is sufficient to record an order of conviction. The evidence of the other family members is only to the effect that the appellant was known to the deceased and the family members had also confirmed the recovery. This itself is not sufficient to hold the appellant guilty. The statement recorded under Section 164 Cr.P.C. is also not proved and the prosecution failed to corroborate the occasion or the reason for such a statement. The Magistrate was also not examined as a witness. It is, therefore a waste paper and cannot be noticed for considering and assessing the evidence. 9. The statement recorded under Section 164 Cr.P.C. is also not proved and the prosecution failed to corroborate the occasion or the reason for such a statement. The Magistrate was also not examined as a witness. It is, therefore a waste paper and cannot be noticed for considering and assessing the evidence. 9. In the facts and circumstances, we are of the view that the prosecution has not been able to substantiate its case from the evidence. The circumstances are not as such which can be sufficient to record and confirm the order of the court below. The appellant is in jail since 2002. 10. Accordingly, for the reasons discussed above this appeal is allowed. The Judgment of conviction and order of sentence passed against the appellant is hereby set aside and quashed. The appellant, who is in jail, is directed to be set at liberty forthwith if not wanted in any other case. 11. Mr. Sudhanshu Kumar Deo, Advocate, who was appointed as Amicus Curiae by this Court has argued this Criminal Appeal and informed that since neither specific fee is allocated nor it is mentioned unless the State is specifically directed, we are of the opinion that he is entitled for a fee of Rs.5,000/. The same will be paid by the State since it is the State, who is responsible to provide a Counsel for the appellant, who is unable to arrange a Counsel at his own expenses specially in the instant case appellant is behind bars since the year 2002. The Counsel can claim the aforesaid amount of Rs.5,000/from the State Government. 12. The appeal is accordingly allowed and the judgment passed by the Sessions Judge in S.T.No.077 of 2003 dated 16.03.2004 is quashed.