Judgment D.N. Patel, J. Present appeal has been preferred against the judgment and order of conviction and sentence date 7th August, 2003 and 8th August, 2003 respectively, passed by the 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 520 of 1990, arising out of Bundu P.S. Case No. 9 of 1990, whereby the present appellant-accused had been sentenced to undergo life imprisonment for the offence punishable under Section 30 34 I.P.C. and has been awarded a fine Rs.10,000/- and in default of payment fine further he has to undergo rigorous imprisonment for one year. 2. The case of the prosecution is that on 19th March, 1990 at about 10p.m., father of the informant, namely Shanti Devi (P.W. 6) had come to the house of the informant for purchase of oxen. Shanti Devi (P.W. 6) is the widow of the deceased. At night, when father of the informant and the husband of the informant were counting money, accused persons, namely Usha Ram Mahato, Maheshwar Mahato and Gopal Mahato came to the house of the informant. Gopal Mahato is the father-in-law of the informant while Usha Ram Mahato and Maheshwar Mahato are the sons of Gopal Mahato, i.e. they are brother-in-laws of the informant. Accused persons started quarreling with the husband of the informant and demanded the entire money from the husband of the informant. On objection by the husband of the informant, accused persons, who were armed with weapons, such as 'Sabar, 'Tabla' and 'Lathi' entered into the house of the informant. It was alleged by the accused persons that husband of the informant was committing theft and passing the money to his father-in-law, i.e. father of the informant. One of the accused persons gave blow on the forehead of the husband of the informant and accused Gopal Mahato, having snatched the money, chased the husband of the informant. Husband of the informant was intercepted on the road and thereafter, he was assaulted by all the accused persons, Sons of the informant, i.e. P.W. 3 and P.W. 4 informed the informant (P.W. 6) that the accused persons assaulted the deceased and they have killed him. Husband of the informant was intercepted on the road and thereafter, he was assaulted by all the accused persons, Sons of the informant, i.e. P.W. 3 and P.W. 4 informed the informant (P.W. 6) that the accused persons assaulted the deceased and they have killed him. On being informed, informant with her sons and father ran away and shut themselves in a room of her house and thereafter when village Mukhiya, namely Ichha Mahato, who is P.W. 8, came to the house of the informant, whole incident was narrated to him and they stayed at the house of the Mukhiya for the whole night and went to Bundu Police Station next morning where F.I.R. was lodged on 20th March, 1990. 3. After registering the case, investigation was carried out and after completion of investigation, charge-sheet was filed. Thereafter, the case was committed• to the court of sessions where it was numbered as Sessions Trial No. 520 of 1990 and the trial proceeded. Two of the accused persons, namely Gopal Mahato and Maheshwar Mahato had already expired during the course of the trial. However, on the basis of evidence given by the prosecution witnesses, the present appellant-accused has been convicted by the learned trial court and sentenced to undergo life imprisonment for the offence punishable under Section 302/34 I.P.C. and a fine of Rs.10,000/-. Against these judgment and orders of conviction and sentence, the present appeal has been preferred. 3. Counsel appearing for the appellant has vehemently submitted that there are material omissions and contradiction in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and hence the judgment of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. Counsel appearing for the appellant has further submitted that in fact the so-called eye witnesses have actually never seen the incident at all. Counsel for the appellant has further pointed out the deposition of Fulendra Mahato (P.W. 3), who is one of the sons of the deceased, namely Khudiram Mahato. P.W. 3 has stated in his cross-examination that at the time and date of the incident his mother and his brother Sanjay Mahto (P.W. 4), who is another son of the deceased, was at another village, i.e. Village-Itki. The occurrence took place at Village-Damari. P.W. 3 has stated in his cross-examination that at the time and date of the incident his mother and his brother Sanjay Mahto (P.W. 4), who is another son of the deceased, was at another village, i.e. Village-Itki. The occurrence took place at Village-Damari. It has been further stated by P.W.3 that his grandfather had sent one Bhutnath Mahato to Village-Itki to call his mother and brother, who are Shanti Devi (P.W. 6) and Sanjay Mahto (P.W. 4) respectively. Thus, whole story of the prosecution is concocted because as per prosecution, both P.W. 6, who is the informant and P.W. 4, who is the son of the deceased are eye witness. This material fact of the prosecution has not been supported by P.W. 3. In his cross-examination, P.W. 3 has stated that he has never seen anybody killing his father. Counsel for the appellant has also pointed out that neither P.W. 4 nor P.W. 6 are the eye witnesses to the incident because they were never present at the place and time of the offence. In fact they were called from another village, namely Village-Itki, after the whole incident was over. Counsel appearing for the appellant has also pointed out that as per deposition given by P.W. 8, who is the Mukhiya of Village-Damari, neither the informant nor her sons had come to his residence. P.W. 6 and P.W. 4 were at another village, i.e. Village-Itki and they were called after the incident was over. Thus, this independent witness has also stated that neither P.W. 6 nor P.W. 4 are eye witnesses' to the incident. Counsel for the appellant had also pointed out that as per the deposition of the Mukhiya of the village (P.W. 8), Sura Mahato (P.W. 7), who was father of the informant, was also at another village, i.e. Village-Itki. He was also informed after the whole incident was over. Thus, as it appears from the deposition of P.W. 7, neither P.W. 4, P.W. 6 nor P.W. 7 were the eye witnesses. Counsel for the appellant has also pointed out that as per deposition of informant P.W. 6, Gopal Mahato has caused injury on the neck of the deceased. But, there was no injury found, as per medical evidence, on the neck of the deceased. Moreover, the conduct of the witnesses is also absolutely unnatural. Counsel for the appellant has also pointed out that as per deposition of informant P.W. 6, Gopal Mahato has caused injury on the neck of the deceased. But, there was no injury found, as per medical evidence, on the neck of the deceased. Moreover, the conduct of the witnesses is also absolutely unnatural. If dead body of the father was lying on the road from approximately 10 p.m., it would not remain as it is on the road up till the next day. In fact, at the time of death, the so-called eye witnesses were never present at all this aspect of the matter has not been properly appreciated by the learned trial court while convicting the accused appellant and therefore; the judgment and order of conviction and sentence passed by the trial court deserve to be quashed and set aside. 4. Counsel appearing for the State, A.P.P., vehemently submitted that the whole incident has taken place on 19th March, 1990 at Village-Damari, District-Khunti, at about 10 p.m. There are four eye witnesses, who are P.Ws. 3, 4, 6 and 7. While P.Ws. 3 and 4 are the sons of the deceased Khudi Ram Mahto, P.W. 6 is his wife. The A.P.P. further submitted that looking to the deposition of these eye witnesses, they have narrated the incident in detail and initially there were three accused persons. As two of them have expired during the course of the trial, therefore, present accused appellant was the only accused, who had been awarded life imprisonment for the offence punishable under Section 302/34 I.P.C. and for a fine of Rs.10,000/-. There is no major omission or contradiction in their evidence. This aspect of the matter was properly appreciated by the trial court and no error has been committed by the trial court in convicting the accused for the murder of Khudi Ram Mahato and therefore, this appeal deserves to be dismissed. 5. Having heard counsel for both sides and looking to the evidence on record, it appears that the whole incident has taken place during night hours, i.e. about 10 p.m. on 19th March, 1990. Shanti Devi is the informant, who is P.W. 6 and wife of deceased Khudi Ram Mahto. Father of P.W. 6 had come to her house for purchase of oxen. Shanti Devi is the informant, who is P.W. 6 and wife of deceased Khudi Ram Mahto. Father of P.W. 6 had come to her house for purchase of oxen. While Husband of P.W. 6 and father of P.W. 6 were counting money, accused persons, three in number, namely Usha Ram Mahto, Maheshwar Mahto and Gopal Mahto came to their house. They quarreled with the husband of the informant, snatched away money and accused Maheshwar Mahato gave blow on the forehead of the husband of the informant, who ran away and was chased by the accused persons. He was intercepted on the road. All the assailants inflicted injuries upon him and ultimately Khudi Ram Mahato, husband of informant expired on the road. It was further stated by informant (P.W. 6) that her sons, i.e. P.W. 3 and P.W. 4 informed the informant (P.W. 6) that the accused persons assaulted her husband and killed him. On being informed, informant with her sons and her father ran away and shut themselves in a room of her house. Thereafter, they had gone to the house of village Mukhiya, namely Ichha Mahato, who is P.W. 8, and stayed there for the whole night and thereafter, F.I.R. was lodged on the next day at Bundu Police Station. 6. On perusal of the deposition of these witnesses it appears that these witnesses me claiming to be eye witnesses to the incident. Looking to the deposition of P.W. 3, who is the son of the deceased, who is also claiming to be the eye witness, his mother Shanti Devi (P.W. 6) and his brother, who is P.W. 4 were never present at the scene of occurrence. They were at another village, namely Village-Itki. The incident has taken place at Village-Damari, district Khunti, Thus, neither P.W. 6 nor P.W. 4 were present at the place of offence when the incident took place. Moreover, it is stated by P.W. 3, son of the deceased that he has never seen anyone beating or killing his father. Thus, on perusal of evidence of P.W. 3, it appears that P.W. 6 is not a reliable witness or trustworthy witness. 7. Looking to the deposition given by the prosecution witnesses, it appears that it is the case of the prosecution that informant and his sons, who were P.W. 3 and P.W. 4, after the assault upon the deceased, went inside the house. 7. Looking to the deposition given by the prosecution witnesses, it appears that it is the case of the prosecution that informant and his sons, who were P.W. 3 and P.W. 4, after the assault upon the deceased, went inside the house. The dead body of the husband of the informant remained on the road and P.W. 3 and 4 went to the house of the village Mukhiya, who is P.W. 8, and stayed there for the whole night and thereafter, they had gone to the police station next morning to lodge F.I.R., but, looking to the deposition of Ichha Mahato (P.W. 8), who is a co-villager (Mukhiya of the village) and an independent witness examined by the prosecution, it appears that he has also stated that the informant P.W. 6, her two sons, who were P.Ws. 3 and 4 as well as Sura Mahato (P.W. 7), who is father of the informant, were not at Village-Damari at the time the occurrence took place as at the relevant time they were at another village, i.e. village-Itki. They were informed about the incident later on by sending one Shri Bhutnath Mahato on motorbike. Thus, looking to the deposition of this independent witness, i.e. P.W. 8, it is apparent that P.Ws. 3, 4, 6 and 7 are not eye witnesses. It has also been stated by P.W. 8 that neither informant nor her two sons had come to his house. 8. Thus, whole story of the prosecution is not getting any support from the deposition of P.W. 3 and P.W. 8. Moreover, different prosecution witnesses are telling different stories so far place of occurrence is concerned. As per P.W. 6, dead body of her husband was lying on the road, which is hardly 20 ft. away from the house, whereas as per P.W. 4, one of the sons of the deceased, dead body of his father was lying at a distance of 100 ft. away from the house on the road. P.W. 8 has given a deposition that dead body was lying at a distance of 300-400 'gaj' from the house of the deceased on the road that leads to Village Bundu. This difference in the depositions is due to the fact that nobody has been eye witness to the occurrence at all. 300-400 'gaj' is equal to half a kilometer. P.W. 8 has given a deposition that dead body was lying at a distance of 300-400 'gaj' from the house of the deceased on the road that leads to Village Bundu. This difference in the depositions is due to the fact that nobody has been eye witness to the occurrence at all. 300-400 'gaj' is equal to half a kilometer. Though, the distance makes not much difference, but considering the totality of the evidence on record, it appears to this court that these so-called eye witnesses are got up witnesses and the fact that they have never seen the incident at all is reflected in the discrepancies in their deposition and hence these witnesses, i.e. P.Ws. 4, 6 and 7 are not reliable witnesses. This aspect of the matter has not been properly appreciated by the learned trial court. The present appellant accused is in jail since 1990. 9. In view of the aforesaid facts, the prosecution has failed to prove, beyond the reasonable doubt, the charges levelled against the appellant-accused and, as such, we hereby quash and set aside the judgment and order of conviction and sentence dated 7th August, 2003 and 8th August, 2003 respectively, passed by the 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 520 of 1990, arising out of Bundu P.S. Case No.9 of 1990, whereby and whereunder, the appellant, namely, Usha Ram Mahto, has been convicted for the offence under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/ -. Since the sole appellant, namely, Usha Ram Mahto, is in judicial custody, he is directed to be released forthwith from the judicial custody, if not required in connection with any other case. 10. The Appeal is, accordingly, allowed and disposed of.