JUDGMENT (PER K.S. APPA RAO, J.) This Criminal Appeal is filed by the appellant A-1 against the judgment dated 29-5-2008, in Sessions Case No. 46 of 2007, delivered by II Additional Sessions Judge, Fast Tract Court, Parvathipuram. The appellant A-1, along with the other accused was tried by the learned Sessions Judge for the charges under Sections 148, 302 and Section 201 read with Section 149 IPC. The learned Sessions Judge while acquitting A-3, A-4, A-6 to A-10 found A-1 guilty of the offences punishable under Sections 302 and 201 IPC, convicted and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- in default, to undergo simple imprisonment for one year for the offence punishable under Section 302 IPC and also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for two months for the offence punishable under Section 201 IPC and directed that both the sentences shall run concurrently. 2. Originally, the case was registered against A-1 to A-10. During the course of trial, A-2 died and accordingly the case against him was abated. So far as A-5 is concerned, since he is a juvenile, he was not shown in the array of the accused and that the police produced him before V Metropolitan Magistrate, Visakhapatnam. After full trial, A-3, A-4 and A-6 to A-10 were found not guilty and accordingly, they were acquitted of all the charges framed against them. So far as A-1 is concerned, he was found guilty and was convicted as stated above. Being aggrieved, A-1 preferred the present Criminal Appeal. 3. The prosecution case, in brief, is as follows: All the accused and the deceased are residents of Naguru village within the limits of Garugubilli P.S. The deceased was practicing witchcraft (chilangi) in the village against the people and cattle. Though L.W. 6 Gullipalli Polinaidu, L.W. 8, Allu Trinadha Naidu and P.W. 4 questioned the deceased to stop it, he did not stop it and threatened them to see their end and gave a report to the police. Then P.W.17-AssistantSub-Inspector of Police, Garugubilli P.S., called both the parties and warned them, but the deceased did not mend his ways. Similarly, L.W. 9 Karanam Sat yam Naidu, L.W. 11 Reddi Seetham Naidu and P.W. 5 also raised the same dispute with the deceased. Then P.W.17-AssistantSub-Inspector of Police, Garugubilli P.S., called both the parties and warned them, but the deceased did not mend his ways. Similarly, L.W. 9 Karanam Sat yam Naidu, L.W. 11 Reddi Seetham Naidu and P.W. 5 also raised the same dispute with the deceased. Few weeks prior to the date of offence, L.W.12-Chanduru Srinu, son of A-1, fell sick. A-1 took L.W.12 to a private doctor in Parvatipuram for treatment, but there was no improvement. Then A-1 approached the deceased. He used to collect Rs. 500/- for treatment on every occasion from A-1, but L.W. 12 was not yet recovered. Thereupon, A-1 being accompanied with all the accused, went to the house of the deceased on the intervening night of 27/28-8-2005, and knocked the door asking him to come out. Then, all the accused questioned the deceased as to why he was harassing them with his witchcraft. The deceased retaliated them with abusive language and threatened to kill them with witchcraft. Thereupon, the accused grew angry with his behavior and beat him with sticks on his head, mouth and other parts of the body. The deceased died on the spot. The accused threw away two sticks at the spot, shifted the dead body in the plank cycle rickshaw to Khandirevu of Nagavali river, dug out sand up to a depth of two feet and buried him there. The remaining sticks used for commission of the offence were thrown into the river and they quietly went away from the place. The wife of the deceased Ganti Varalakshmi found her husband missing 238 from the cot at 4 a.m. on 28-8-2005 and found two sticks suspiciously in front of their house. Thereupon, she gave a statement of P.W. 17, which was registered as a case under 'man missing' in Crime No. 25 of 2005. While so, at about 9 a.m. on 29-8-2005, L.W. 31, Inspector of Police, Parvatipuram, arrested A-1 in the presence of mediators viz., P.W. 17 and L.W. 11 P. Venkatanaidu at Khadgavalasa junction while he was trying to escape from that place. A-1 narrated the incident and gave details as to how the offence was committed. He led L.W. 31 Inspector of Police, Parvatipuram and the mediators to a place near Khandirevu of Nagavali in Naguru and showed the place besides a stone stating that the deceased was buried there A-1 removed some sand and then asked for assistance. A-1 narrated the incident and gave details as to how the offence was committed. He led L.W. 31 Inspector of Police, Parvatipuram and the mediators to a place near Khandirevu of Nagavali in Naguru and showed the place besides a stone stating that the deceased was buried there A-1 removed some sand and then asked for assistance. Then, under the instructions of L.W. 18 Mandai Executive Magistrate, P.W. 10, a washerman, assisted A-1 and exhumed the dead body from underneath the send. L.W. 28, Mandal Executive Magistrate, held inquest over the dead body of the deceased in the presence of the mediators and A-1 was sent for judicial remand. P.W. 11, the doctor, conducted postmortem examination over the dead body of the deceased and issued post mortem certificate opining that the deceased died to injuries on head and mouth. Thereafter, based on the report given by P.W.1, the police registered a case in Crime No. 25 of 2005 and after completion of investigation, they filed the charge sheet. 4. During the course of trial, the prosecution, in order to establish the guilt of the accused for the offences punishable under Sections 148, 302 and Section 201 read with Section 149 IPC, examined P.Ws. 1 to 17 and got marked Exs. P-1 to P-20 and M.Os. 1 to 3 On behalf of the accused, no oral or documentary evidence was adduced. 5. The learned counsel for the appellant A-1 argued that the trial Court based on Ex.P-5 confessional statement, given by the appellant, convicted the appellant without any substantive evidence of the prosecution witnesses. She also further argued that motive in committing the offence by the accused is not proved by the prosecution by adducing any evidence and that M.Os. 1 to 3 are available in the open market and that there are no identity marks on the material objects and that the witnesses clearly stated that there are no blood-stained marks on the material objects, and therefore, it cannot be ruled out that the appellant committed the offence by using M.Os. 1 to 3. She also further argued that the F.I.R. is silent on the alleged participation of the appellant and prayed for acquittal of the appellant. 6. The learned Public Prosecutor, while supporting the judgment of the trial Court, fairly conceded that the investigating officer, L.W. 31, was not examined by the prosecution. 1 to 3. She also further argued that the F.I.R. is silent on the alleged participation of the appellant and prayed for acquittal of the appellant. 6. The learned Public Prosecutor, while supporting the judgment of the trial Court, fairly conceded that the investigating officer, L.W. 31, was not examined by the prosecution. While supporting the judgment of the trial Court, he urged that confessional statement of the appellant leads to recovery of the material objects and to find out the dead body of the deceased and therefore, it amply proved the involvement of the appellant in the commission of offence, and therefore, in any view of the matter, the finding of the trial Court convicting A-I is sustainable. 7. Now the point for consideration is whether the judgment of the trial Court in convicting the appellant A-1 is sustainable? 8. As seen from the charge sheet, it appears that all the accused were tried for the offences punishable under Sections 148, 302 and Section 201 read with Section 149 IPC. The trial Court acquitted A-3, A-4 and A-6 to A-10 of the charges framed against them and found A-1 guilty of the offences punishable under Sections 302 and 201 Indian Penal Code. As per the charge sheet, A-1 to A-10 participated in the commission of offence. P.W. 1 is the wife, P.W. 2 is the mother P.W.3 is the brother of the deceased. It is the case of the prosecution that the deceased was attacked in his house and later the dead body was shifted to somewhere and buried there. 9. Admittedly, the alleged offence was on the intervening night of 27/28th August 2005 and the report was lodged to the police on 28-8-2005 by P.W. 1. Originally, FIR was registered for the offence under Section 174 Cr.P.C. under the caption 'man missing'. Thereafter, altered the section of law to Sections 148, 302, 201 read with Section 149 IPC. 10. A perusal of the FIR clearly shows that somebody might have attacked the deceased which led to his death. But, nowhere in the FIR, the names of the accused were noted. But during the course of recording confessional statement-Ex.P-5, the involvement of the appellant was brought in. According to the prosecution, L.W. 31, the Circle inspector, did the investigation besides recording the confessional statement of A-1, but L.W. 31, the said material witness, was not examined. 11. Admittedly, P.Ws. But, nowhere in the FIR, the names of the accused were noted. But during the course of recording confessional statement-Ex.P-5, the involvement of the appellant was brought in. According to the prosecution, L.W. 31, the Circle inspector, did the investigation besides recording the confessional statement of A-1, but L.W. 31, the said material witness, was not examined. 11. Admittedly, P.Ws. 4 and 5 were declared hostile and did not support the prosecution case and their statements were marked as Exs. P-2 and P-3 respectively. As P.Ws. 4 and 5 turned hostile, and their evidence was not supported by the evidence of the investigating officer, their evidence was not rebutted. Their evidence did not state anything about the alleged incident. Excepting the evidence of P.W.1, there is no mention about the names of the accused in the FIR, but subsequently, their names were included during the course of investigation. The reasons for charging A-1 and the other accused during investigation were not spoken by the investigating office, L.W. 31. Therefore, the non-examination of the investigating officer (L.W.31), is fatal to the case of the prosecution inasmuch as the accused was deprived of availing the opportunity of cross-examining the said material witness. Though we are conscious of the fact that there are some catena of decisions to the effect that non-examination of the investigating officer is not fatal, but in the present case, where the entire case was investigated by the investigating officer particularly, Ex. P-S was recorded by him, the validity of the said document cannot be upheld straight away without examining the concerned witness who did the investigation. The other witnesses, P.W. 14, Sub-Inspector of police and P.W. 17, Assistant Sub-Inspector of Police, have clearly stated in their evidence that the entire investigation was done by the Circle Inspector of Police, L.W. 31. All the witnesses positively asserted that the investigation was done by L.W. 31. In the aforesaid circumstances, the non-examination of the material witness, L.W. 31, is fatal to the case of the prosecution. 12. In the above circumstances of the case on hand, it is also borne out from the evidence of P.W. 7, who is the punch witness, that Ex.P-5, confessional statement of A-1, was recorded by the police in his presence and he subscribed his signature on the same. 12. In the above circumstances of the case on hand, it is also borne out from the evidence of P.W. 7, who is the punch witness, that Ex.P-5, confessional statement of A-1, was recorded by the police in his presence and he subscribed his signature on the same. P.W. 16 also stated that he has not recorded any confessional statement at the time of recovery of the dead body and also he has not verified whether A-1 is in police custody or not at that time. 13. The only piece of evidence i.e., Ex. P-5 confessional statement of the appellant, is available with the police to substantiate the case, but the same is doubtful in the above said circumstances. Apart from that, the material objects which were alleged to have been used for the commission of offence, do not contain any blood stains and the same is admitted by P.W. 17. 14. In the above said circumstances, it is clear that there is no direct witness much less the substantial evidence in connection with the commission of offence by the appellant for the offence punishable under Section 302 Indian Penal Code. But the trial Court convicted A-1 mere conjunctures and surmises without any positive and cogent evidence. When the trial Court disbelieved the evidence adduced by the prosecution against the other accused i.e., A-3, A-4 and A-6 to A-8, the conviction of A-1 for the self - cause, based on Ex. A-5, confessional statement, and the sentence imposed thereupon is erroneous and not sustainable in the eye of law. 15. Regarding the offence punishable under Section 201 IPC, it is the case of the prosecution that the appellant has shifted the dead body to some other place and buried the same, thereby, he committed the offence under Section 201 IPC. When the trial Court found the other accused not guilty of the offence under Section 201 IPC, it is not proper to impose conviction of the offence under Section 201 Indian Penal Code against A-1 alone. On that score also, the finding of the trial Court is not sustainable. Further, there is no material to substantiate that once the Court disbelieves the confessional statement, Ex. P-5, there is no reason to record a finding that Section 201 IPC is attracted. On that score also, Section 201 IPC is not applicable to the facts and circumstances of the case. Further, there is no material to substantiate that once the Court disbelieves the confessional statement, Ex. P-5, there is no reason to record a finding that Section 201 IPC is attracted. On that score also, Section 201 IPC is not applicable to the facts and circumstances of the case. There is only piece of document, Ex. P-5 to implicate the appellant under Section 201 IPC. When once the Court has disbelieved the participation of the accused in the offence punishable under Section 302 IPC, the question of involvement of the accused in commission of offence under Section 201 IPC does not arise. Therefore, the conviction and the sentence imposed on the appellant A-1 are not sustainable. 16. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant A-1 in Sessions Case No. 46 of 2007, dated 29-5-2008, by II Additional Sessions Judge, Fast Track Court, Parvatipuram, Vizianagaram District, are set aside. The appellant A-1 shall be released forthwith, if he is not required in any other case.