JUDGMENT Amitava Roy, J. 1. Both the appeals witness a challenge to the judgment and order dated 19.07.2011 passed by the learned Addl. Sessions Judge (FTC), Sonitpur, Tezpur in Sessions Case No. 15/2007, thereby convicting the accused-appellants under Section 302 of the Indian Penal Code (for short hereinafter referred to as the IPC) and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo R/I for further period of 1 (one) month. We have heard Mr. S.C. Biswas, and Mr. J.C. Barman, Advocates for the accused-appellants being assisted by Ms. S.D. Choudhury, Mr. H. Rahman and Mr. D. Bania, Advocates and Mr. D. Das, learned Addl. Public Prosecutor for the State respondent. 2. On the FIR dated 30.09.2006 lodged by one Pitambar Tirki with the Officer-in-Charge of Misamari Police Station to the effect that at about 7.30 P.M. on the same date while he (informant) and his wife (Samari Tirki) were in their house, a few boys wanted to enter and as he resisted them, they grabbed him and demanded on the point of a dagger the consideration price of the cow that he had sold. The FIR further disclosed that the informant having expressed his inability to make the payment as no money was with him, the miscreants released him. On this incident, the informant being apprehensive went out to the nearby village seeking help and sometime later returned home and found his wife Samar Tirki lying dead inside the house. On this FIR, Misamari P.S. Case No. 78/2006 under Section 302/34 IPC was registered and at the end of the investigation, a charge sheet was laid against the accused-appellants. Charge was framed under the aforementioned provisions of law against them, to which they pleaded "not guilty" and claimed to be tried. At the trial, the prosecution examined 13 (thirteen) witnesses including the doctor who had performed the postmortem examination as well as the Investigating Officer. The accused-appellants in course of their examination under Section 313 Cr.P.C. totally denied the charges. They however declined to adduce any evidence. By the impugned judgment and order they were thereafter convicted and sentenced as above. 3. Mr. The accused-appellants in course of their examination under Section 313 Cr.P.C. totally denied the charges. They however declined to adduce any evidence. By the impugned judgment and order they were thereafter convicted and sentenced as above. 3. Mr. Biswas has emphatically argued that the prosecution having failed to prove the charge against the accused-appellants, the learned trial court was in error in convicting and sentencing them by the decision assailed in the present appeals. According to the learned counsel, not only there was no eye witness to the actual incident resulting in the death of the wife of the informant, even the circumstantial evidence offered by the prosecution was not adequate enough to unerringly prove the complicity of the accused-appellants in the alleged offence. Mr. Biswas has argued that the purported seizure of the dao from the house of the Appellant No. 1 (Kinu Choi) is invalid in law as the same was not in accordance with the mandate/procedure legally prescribed. More over, there being no evidence of any blood stain on the said weapon or any report or any serological or forensic expert to connect the weapon with the offence, there was no basis to lay any nexus between the accused-appellants and the offence of murder as alleged. The learned counsel argued that the learned trial Court grossly erred in law in relying on the statements made by the witnesses under Section 161 Criminal Procedure Code (for short hereinafter referred to as the Cr.P.C.) and 164 Cr.P.C. for entering the finding of guilt against the accused-appellants thus rendering the impugned judgment and order unsustainable in law. The learned Addl. Public Prosecutor has in controversion pleaded that the evidence of the prosecution witnesses construed as a whole proves the charge beyond all reasonable doubt against the accused-appellants and therefore no interference with the impugned judgment and order is warranted. 4. To appreciate the rival arguments, it would be essential to outline a sketch of the evidence on record in its bare essentials. To start with, it is evident from the FIR that no assailant was named therein and to be specific even the accused-appellants were not identified to be the trespassers for extortion. 4. To appreciate the rival arguments, it would be essential to outline a sketch of the evidence on record in its bare essentials. To start with, it is evident from the FIR that no assailant was named therein and to be specific even the accused-appellants were not identified to be the trespassers for extortion. PW-1 Pitambar Tirki, the informant and the husband of the deceased stated on oath that at about 7/7.30 P.M. on the date of the occurrence, the accused-appellants had come to his house and at the point of dagger tried to extort the consideration price that he had obtained by selling his cow. According to this witness, as he expressed inability to make the payment, as no funds were available, the accused-appellants left the compound of the house. On this, however he being alarmed went out to the nearby village for help and brought one Ganesh Thapa with him. This witness stated that Ganesh Thapa alone had accompanied him back home and left sometime thereafter and he (witness) sat on his verandah. He further stated that about 10/15 minutes later his daughter Mina Tirki returned from their shop and entered the house, whereafter she on lighting match stick saw her mother (wife of the deceased) lying injured/dead on the bed. Though this witness in his examination-in-chief stated that the accused-appellants had murdered his wife and that they did so when he had gone out seeking help from the village, in cross-examination, he not only admitted that he had a poor eye sight but conceded as well that he was not aware as to who had entered the house. In his cross-examination this witness however admitted that at the time of the occurrence there were other inmates in the house including his sons and one daughter-in-law. He admitted further that at that time there was no light inside the house. He stated that for want of light, while he was sitting on the verandah, nothing was visible to him. He clarified that his daughter Mina Tirki had returned home at about 8/8.30 P.M. In categorical terms, this witness disclosed that he was not aware as to who had entered the house. He admitted further that there was a thoroughfare abutting his house by which people used to move continuously. He clarified that his daughter Mina Tirki had returned home at about 8/8.30 P.M. In categorical terms, this witness disclosed that he was not aware as to who had entered the house. He admitted further that there was a thoroughfare abutting his house by which people used to move continuously. According to him, the house of Ganesh Thapa whom he brought from the village was located at a distance of a kilometer from his house. On being confronted, in course of his cross-examination this witness however admitted that his wife was being suspected to be a witch by the villagers. 5. PW-2 Dr. Ramendra Nath Roy, who had performed the post-mortem examination on the dead body found the following injuries thereon: Injuries: 1) A deep incised wound seen over right side of neck, size - 8 cm x 8 cm x 6 cm. Muscles, great vessels of neck are severed & exposed. Blood & blood clot seen at the site of wound. 2) Deep cut wound seen at the right side of the neck size - 6 cm x 6 cm x 6 cm; Muscles and great vessels are severed. Blood and blood clot seen at the cut wound site. In his opinion, death was due to hemorrhage and shock as a result of the injuries sustained. He proved the post mortem report, Ext-3 and clarified that the injuries found on the dead body could not be caused by fall on hard substance. The evidence discloses that no weapon of assault was shown to him to connect he same with the injuries noticed by him. 6. The evidence of PW-3 Jatin Tirki, the son of the deceased stated that a few days before the incident, the accused-appellants had alleged that his mother was a witch and threatened to kill her. He deposed that while he was in his shop one Sukur Munda informed him that his mother had been killed, whereafter, he returned home. He stated that the police on reaching the spot made inquest on the dead body. According to this witness Mangra Munda had heard the accused-appellants plotting to kill his mother suspecting her to be a witch. He admitted that the accused-appellants had not told him anything in this regard. He proved his statement under Section 164 Cr.P.C. as Ext-4. In cross-examination he reiterated that the villagers called his mother a witch. According to this witness Mangra Munda had heard the accused-appellants plotting to kill his mother suspecting her to be a witch. He admitted that the accused-appellants had not told him anything in this regard. He proved his statement under Section 164 Cr.P.C. as Ext-4. In cross-examination he reiterated that the villagers called his mother a witch. He admitted of having got the FIR written on which he had taken the signature of his father (PW-1). This witness further stated that the accused-appellants had never disclosed their intention to kill his mother before him. He admitted as well that he was not an eye witness to the incident. 7. PW-4 Astu Ram Sahu, who at the relevant point of time was the Secretary, VDP is a reported witness who went to the place of occurrence on receiving the information thereof. He claimed to have informed the Misamari Police Station about the incident over phone, whereafter the police came to the place of occurrence and conducted the inquest. He proved the inquest report Ext-2. He stated that on that date the police did not make any seizure but after a few days thereafter they came and took him to a nearby jungle and claimed to have recovered one dagger/weapon from the bed of the accused-appellant No. 1 (Kinu Choi). He proved the seizure list, Ext-3 and also identified the weapon, M-Ext-1 and 2. In cross-examination, this witness confirmed that at the time of the occurrence there were other members of the family in the house of the deceased. He also confirmed that the deceased was suspected to be a witch by the villagers. He admitted that none of the persons were assembled at the place of occurrence had given any hint as to how the incident had happened and that even on the date of his deposition he was not aware as to who was responsible therefor. vis--vis the seizure of the weapon by the police, as mentioned by him in his examination-in-chief, this witness clarified in his cross-examination that the same was recovered by the police from inside the house of accused-appellant No. 1 while he along with others were outside. This witness stated to have made his signature on the seizure list, Ext-3 at the police station thereafter. He admitted further that the dao i.e. M.-Ext-1 was a common sharp cutting weapon available in every household in the village. 8. This witness stated to have made his signature on the seizure list, Ext-3 at the police station thereafter. He admitted further that the dao i.e. M.-Ext-1 was a common sharp cutting weapon available in every household in the village. 8. PW-5 Raju Orang, in his examination-in-chief expressed his ignorance about the identity of the assailants whereafter he was declared hostile and was confronted with the statement made by him before the police in course of the investigation and also before the learned jurisdictional Magistrate U/s. 164 Cr.P.C. which he proved as Ext-4. A perusal of the extract of this statement as quoted by the learned trial court would on the face of the record show that even therein he had not claimed to have seen the incident and thus elaboration thereof is uncalled for. In cross-examination by the defence, he admitted in categorical terms that he had no knowledge as to how the deceased had been killed or who was responsible therefor. He admitted that the accused-appellants had never confessed before him to have murdered Samari Tirki. 9. The evidence of PW-6 Mangra Tirki is in identical lines with that of PW-5. On being declared hostile, he was confronted with the statements made under Sections 161 Cr.P.C. and 164 Cr.P.C. As his testimony does not reflect on the actual commission of the offence, it is not essential to deal with the same in details. 10. PW-7 Durga Dhudarai is also a reported witness and in clear terms stated that he was not aware as to how the incident had occurred and who were the perpetrators of the alleged offence. This witness was declared hostile and the prosecution confronted him with the statements made in course of the investigation. 11. PW-8 Smti Harimaya Poudel is a reported witness. She stated that police having visited the place of occurrence on receiving the information she accompanied them to the place of occurrence. She proved the inquest report, Ext-2. She stated that the informant PW-1 had disclosed to her that some Adivasi people had killed his wife. 12. PW-9 Tularam Kurmi is the scribe of the FIR and the evidence of PW-10 Dhan Prasad Subba and PW-11 Babul Tirki does not improve the case of the prosecution vis-a-vis the actual act of assault. 13. PW-12 Mr. She stated that the informant PW-1 had disclosed to her that some Adivasi people had killed his wife. 12. PW-9 Tularam Kurmi is the scribe of the FIR and the evidence of PW-10 Dhan Prasad Subba and PW-11 Babul Tirki does not improve the case of the prosecution vis-a-vis the actual act of assault. 13. PW-12 Mr. Shri. A.K. Baruah who at the relevant point of time was the jurisdictional Magistrate stated to have recorded the statement of the witnesses Jatin Tirki, Raju Orang and Durga Dhudarai under Section 164 Cr.P.C. which he proved as Ext-4, 5 & 6 respectively. 14. PW-13 Prafulla Kr. Das, is the Investigating Officer who detailed the steps taken by him in course of the investigation and deposed that on the completion thereof, he submitted a charge sheet under Section 302/34 IPC. 15. On a conjoint reading of the testimony of the prosecution witnesses, we are constrained to hold that the charge of murder of Samari Tirki by the accused-appellants has remained unproved. Not only there is no eye witness to the incident, the evidence of the prosecution witnesses at the trial as well as the statements made in course of the investigation, in our opinion makes the involvement of the accused-appellants in the offence highly improbable. Not only, the testimony of PW-1 read as a whole does not in any manner implicate the accused-appellants in the commission of the offence of murder, the prevailing suspicion in the mind of the villagers that the deceased was a witch, and the location of the house abutting a public thoroughfare in our estimate, made her vulnerable to such fatal assault by all and sundry. Neither there has been any identification of the accused-appellants to be the actual assailants in absence of an eye witness, the failure to do so in the face of the presence of other inmates of the house in our opinion makes the prosecution case vis-a-vis the them extremely doubtful. It is also in evidence that the incident of murder came to light for the first time after PW-1's daughter Mina Tirki had returned home at about 8/80 P.M. from the shop. There was thus evidently a time lag of one hour between the two incidents. That at the relevant point of time it was dark all round is also available from the evidence of PW-1. There was thus evidently a time lag of one hour between the two incidents. That at the relevant point of time it was dark all round is also available from the evidence of PW-1. That, the door of his house was ajar at the time when he had gone out to the village is also decipherable from his evidence. The evidence of the hostile witnesses, according to us, even if as made in course of the investigation before the learned Magistrate is accepted on its face value does not implicate the accused-appellant in the incident. The seizure of dao to say the least reflects the casual approach of the Investigating Officer in effecting the same. There is nothing to disbelieve PW-4 Astu Ram Sahu that at the time of seizure from inside the house of the accused-appellant No. 1 he along with others who had accompanied the police were outside and that he was made to sign the seizure list only at the police station. It is thus evident that the weapon was not seized by the police in presence of independent witnesses. Admittedly, there is no evidence on record to even suggest that the weapon had any blood stain on it. That dagger/dao of the kind seized was not only available freely in every house in the village but had not been sent for any serological or forensic test to connect it with the offence is also apparent on the face of the records. 16. On an overall assessment of the evidence on record, we are thus of the unhesitant opinion that the prosecution had failed to prove the charge of murder against the accused-appellants. We have perused the impugned judgment and order and find ourselves in respectful disagreement with the learned trial court on the aspect of his reliance on the so-called circumstantial evidence against them with regard to the finding of guilt under Section 302/34 IPC. In the above view of the matter, the impugned judgment and order is interfered with. The conviction and sentence recorded against the accused-appellants is set aside and they are ordered to be set at liberty forthwith, if not wanted in any other case. The appeals stand allowed. Appeal allowed