ORAL JUDGMENT ADITYA KUMAR TRIVEDI, J :- Cr. Appeal No. 204/1990 wherein Arun Singh, Raju Singh, Rameshwar I happen to be appellants, Cr. Appeal No. 215/1990 wherein Santosh I @ Santosh Kumar I, Madho Singh @ Madhaw Singh, Nakul Singh, Ghinu Singh happen to be appellant commonly originate from Sessions Trial No. 183/89/306/89 arising out of Pranpur P.S.Case No. 26/89 wherein judgment was delivered on 16th May 1990 by the learned Sessions Judge, Katihar. Hence there has been analogous hearing and accordingly, both the appeals are dealt with by a common judgment with the consent of the parties. 2. In Cr. Appeal No. 204/1990, Sri Rajiv Kumar Verma, Sr. Advocate represented the appellants/convict whereas none represented Cr.Appeal No.215/1990, consequent thereupon Ms. Meeta Sinha has been appointed as an amicus curiae. 3. All the above named appellants i.e., Arun Singh, Madhav Singh, Nakul Singh, Raju Singh, Rameshwar I, Santosh I, Ghinu Singh have been found guilty for an offence punishable under Section 302/34 of the IPC of the IPC and accordingly, they were directed to undergo RI for life. 4. Jadu Singh, PW-9 gave his Fardbeyan, (Ext-3) on 30.03.89 at about 9:30 a.m. at place of occurrence near the dead body of his son Nako Singh disclosing therein that on 29.03.89 at about 6:00 p.m. he had gone to watch his boring situated at Bichladhar Badhar. His son, Nako Singh had disclosed that you firstly should go, then he will follow after taking meal. He irrigated his paddy crop uptil 7 P.M. and then thereafter he slept. At about 11:00 p.m. he awoke and found his son absent over which he thought that he might remained at his house. At about 5 a.m. when he proceeded towards his house and reached near the field of Radha Babu and Mahangu, he found his son dead. Copious blood was found on account of injury caused at his neck at left side. One Khanti and a receptacle containing five liters of diesel was found there. On his hue and cry, the villagers came. Then had submitted that he has got enmity with his co-villager, Ghinu Singh on account of sinking of boring at that very place as a result of which Ghinu was suffering loss and for that he was always threatening. One Khanti and a receptacle containing five liters of diesel was found there. On his hue and cry, the villagers came. Then had submitted that he has got enmity with his co-villager, Ghinu Singh on account of sinking of boring at that very place as a result of which Ghinu was suffering loss and for that he was always threatening. Then had disclosed that while he was coming to his boring on 29.03.89 at about 6 P.M., Ghinu Singh, Madhav Singh, Nakul Singh had threatened him that either he should stop irrigating others otherwise he will be taught a lesson. Further disclosed that last year there was theft of pump set of Ghinu Singh for which his son was being held responsible and in the aforesaid background, there was scuffle. Accordingly, he shown suspicion against the aforesaid Ghinu Singh, Madhav Singh and Nakul Singh. Further disclosed that aforesaid three persons are absent. 5. On the basis of the aforesaid Fardbeyan, Pranpur P.S. Case No. 26/89 was registered under Section 302/34 of the IPC followed with investigation and submission of charge-sheet whereupon cognizance was taken and accordingly, case was committed to the court of sessions. Because of the fact that appearance of accused was procured at different occasions therefore two sessions trials originated there-from which was subsequently amalgamated and consequent thereupon been concluded and decided by a common judgment by the learned lower court convicting the appellants as aforesaid. 6. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that appellant/convict are innocent and they have been falsely implicated in this case on account of longstanding enmity. In their defence examined two DWs however no document has been exhibited on behalf of the accused. 7. While assailing the judgment of conviction and sentence, it has been submitted on behalf of the appellants-convicts that the judgment impugned is suffering from conjectures and surmises. Then submitted that there happens to be absence of eyewitness to occurrence. In their defence examined two DWs however no document has been exhibited on behalf of the accused. 7. While assailing the judgment of conviction and sentence, it has been submitted on behalf of the appellants-convicts that the judgment impugned is suffering from conjectures and surmises. Then submitted that there happens to be absence of eyewitness to occurrence. Whoever been examined, have not supported the case of the prosecution so far complicity of appellants-convicts are concerned save and except one Girdhari Rishi and his brother Lobin Rishi whose evidence also do not inspire confidence because of the fact that the manner wherein they had deposed with regard to handing over sword and knife to him by the appellant-convict Raju Singh and Arun Singh became unreliable in the background of the fact that since before the date of occurrence there was dispute coming in between those witness with aforesaid appellant-convict hence story of handing over sword and knife became unreliable. Furthermore, in the aforesaid background, it is highly improbable for the appellant-convict Raju and Arun to go at the place of witness, Girdhari Rishi and will direct him to keep blood stained sword knief. More so if the aforesaid story is accepted then it would have been a natural conduct on the part of these two witnesses to raise hue and cry at that very moment attracting the villagers to show that appellant-convict had handed over blood stained sword to him. Not only this, it is their evidence that witness Girdhari Rishi got the aforesaid blood stained sword concealed beneath sand which was not placed before the investigating authority on the first day of visit at the P.O. even having his presence. Presentation of sword and knife after three days of the occurrence disclosing that the accused persons had handed over the aforesaid sword directing him to conceal the same is neither appreciable nor convincible. 8. Furthermore, it has been submitted that apart from above circumstances, no other circumstance is available to give a conclusive finding with regard to complicity of the accused during commission of the crime. Then submitted that enmity is a double edged sword. Enmity may be a motive for commission of an occurrence side by side enmity may be a cause for false implication. After all, it is the prosecution who bears the responsibility to support its case beyond all reasonable doubt by placing reliable evidence. Then submitted that enmity is a double edged sword. Enmity may be a motive for commission of an occurrence side by side enmity may be a cause for false implication. After all, it is the prosecution who bears the responsibility to support its case beyond all reasonable doubt by placing reliable evidence. Because of the fact that complicity of the appellant-convict has not been connected with the occurrence so alleged by direct or circumstantial evidence hence the finding recorded by the learned lower court appears to be arbitrary, perverse and is accordingly fit to be set aside. 9. On the other hand, learned APP supports the findings of the learned lower court and submitted that true it is that there happens to be absence of direct evidence but the circumstances whatever been produced by the prosecution before the learned lower court happens to be so convincing and inter-linked that no other hypothesis than that of guilt of accused could be inferred and so the learned lower court has rightly recorded guilt of the appellants-convicts followed with sentence. 10. In order to support its case prosecution has examined altogether 13 PWs out of whom PW-1 is Dr. B.P. Karn, PW-2 is Sahdeo I, PW-3 is Kanhaiya Lal Upadhyay, PW-4 is Ganesh Pd. Gupta, PW-5 is Girdhari Rishi, PW-6 is Lobin Rishi, PW-7 is Rohini Devi, PW-8 is Anup Lal Singh, PW-9 is Jadu Singh, PW-10 is Radhay Kant Prasad, PW-11 is Prsiddha Narain Singh, PW-12 is Bhola Nath Upadhaya and PW-13 is Milan Devi side by side had exhibited Ext-1, postmortem report, Ext-2/1 signature over inquest report, Ext-2/2, 2/3, 2/4, 2/5 signature over seizure list, Ext-3/Fardbeyan, Ext-4/inquest report, Ext-5/1, seizure list. Ext-6 Formal FIR and has also brought material exhibit, material Ext-(I) Sword, Material Ext-(II), Knife. At the other hand, on behalf of appellants-convicts two DWs have been examined. DW-1 is Shankar Mandal and DW-2 is Dina Nath I. 11. Now coming to the nature of evidence so adduced on behalf of prosecution, it is suffice to say that none is an eyewitness to the occurrence. PW-1 happens to be the doctor who held post-mortem PW-2. PW-4 happens to be inquest witness. PW-3, declared hostile. PW-10 is seizure witness while PW-11 is I/O. The prosecution rests upon the evidence of PW-5, PW-6, PW-7, PW-8, PW-9, to prove the circumstances. 12. On 31.03.89 at about 11:00 a.m. PW-1 Dr. PW-1 happens to be the doctor who held post-mortem PW-2. PW-4 happens to be inquest witness. PW-3, declared hostile. PW-10 is seizure witness while PW-11 is I/O. The prosecution rests upon the evidence of PW-5, PW-6, PW-7, PW-8, PW-9, to prove the circumstances. 12. On 31.03.89 at about 11:00 a.m. PW-1 Dr. B.P. Karn had conducted post-mortem over the dead body of Nako Singh and found the following ante-mortem injuries:- (i) Incised wound 3”x2”x1” on left side of neck just above clavicle. Frothy material coming out of mouth and external nostril. No other injury present. (ii) Rigor mortis was absent in both upper limbs but was present on both lower limbs. (iii) On dissection- Chest, heart, all chambers empty. Lungs pale, neck wound approaching near the cervical vertebrae. Big vessels on left side of neck and left half of trachea incised. Muscles in the neck of left side cut. (iv) Abdomen- liver pale, spleen pale, kidney pale, stomach filled with partially digested rice and other food materials. Small and large intestine filled with gas and fecal matter. Urinary bladder empty. Head skull bone was intact. 13. In the opinion of the doctor the death was caused by sharp cutting weapon on neck by sharp cutting weapon leading to shock and haemorrhage. Time elapsed since death within 48 hours. 14. Virtually, no cross-examination was made over material point on behalf of accused nor the death of deceased has been put under challenge. Hence murder of deceased as recorded by doctor remained unshaken. 15. Surpassing the evidence of PW-2 and PW-4, witness being formal in nature on account of having confined to the point of inquest, the evidence of PW-3 has to be seen who subsequently been declared hostile although had said that murder of Nako Singh was committed in between night of 29/30.03.89 over which he rushed to the place of occurrence and had seen the dead body having cut injury over neck. Family of Ghinu Singh and Nakul Singh were on inimical terms on account of theft of pumping set of Ghinu for which he was pointing out his fingers towards Nako. Further, on account of sinking of boring by Nako, Ghinu was suffering loss. Then thereafter, he resiled from his previous statement. Therefore, save and except showing the theme of animosity amongst prosecution as well as defence side nothing more is coming out from his evidence. 16. Further, on account of sinking of boring by Nako, Ghinu was suffering loss. Then thereafter, he resiled from his previous statement. Therefore, save and except showing the theme of animosity amongst prosecution as well as defence side nothing more is coming out from his evidence. 16. PW-5 had said that about a year ago while he was going to meet nature’s call towards bandh and was passing through near Kamath of Arun Singh, he saw Arun, Raju, Santosh, Rameshwar, Nakul jointly relishing wine. After coming back he slept. Raju and Arun came at midnight and awoke him and at that very time Raju was armed with a sword while Arun with a knife. Raju directed him to keep the sword which was denied by him over which Raju gave threatening as a result of which he accepted the sword as well as knife. They also directed him not to disclose the fact. Then thereafter, he saw the sword and knife and found it soaked with blood. Then thereafter, he took it and concealed under sand in a pond belonging to Arun. On following morning, he came to know regarding murder of Nako. After two days he disclosed the event to his brother Lobin. Subsequently, he handed over sword and knife to the police. 17. During cross-examination at para-3 he had admitted that earlier to the aforesaid event, Arun had cut away his earth while digging pond. At para-4 had said that he had gone towards bandh to meet nature’s call. At that very time darkness was falling. He had got no lantern or torch. He had seen five persons who were drinking. At para-5 had disclosed that at midnight when Raju and Arun came he was sleeping. They both called him from outside his hut. They only called him over which he came out. He cannot say the colour of the clothes worn by them. Just after a minute or two they left the place. Thereafter, he rushed to the pond where he concealed the sword beneath sand. At para-6 disclosed that he had disclosed the fact to Lobin after two days. He had instructed him not to speak anybody. One week after the occurrence, he had handed over the knife and sword to police and gave his statement. 18. PW-6 is Lobin Rishi. He had deposed that the occurrence is about a year ago. At para-6 disclosed that he had disclosed the fact to Lobin after two days. He had instructed him not to speak anybody. One week after the occurrence, he had handed over the knife and sword to police and gave his statement. 18. PW-6 is Lobin Rishi. He had deposed that the occurrence is about a year ago. At that very time, he was going towards Bandh through Kamath of Arun where he saw Arun, Raju, Santosh, Rameshwar, Nakul engaged in drinking. After meeting nature’s call he returned back and slept. On the following morning, he rushed to the place of occurrence and found the dead body of Nako north to the boring of Radha Babu. Two days thereafter, his brother Girdhari Rishi had disclosed him that Arun and Raju had come in the night of alleged occurrence and had handed over sword and knife. He had refused to accept their demand but on threatening, he accepted and then concealed beneath the sand over which he directed him not to speak to anybody. He himself consulted Mukhia. After a week when police had come, they have disclosed and further Girdhari handed over sword and knife to the police. In para-3 of the cross-examination, he had said that they have got common aangan. In the night of alleged occurrence, Girdhari had not awaken him. Further, disclosed that he had not stated before anybody that he had consulted Mukhia and others. Then had denied the disclosure made by his brother regarding cutting of earth from the field of accused, Arun Singh. 19. PW-7 happens to be Rohini Devi. Deceased was her husband. She had deposed that her husband came at 3:00 p.m. after harvesting wheat crop. Thereafter, Santosh took him away. At the evening time her husband came and said to his father to proceed towards the pumping set. He will follow after meal. Her husband proceeded having diesel and Khanti. Her father-in-law did not return in the night. On the following morning, he came running raising hue and cry that his son has been murdered. Then had disclosed that her husband has got some sort of dispute with Ghinu in the background of theft of pumping set for which he was putting finger towards her husband. During cross-examination had said that they are Bataidar of Santosh Singh. On the following morning, he came running raising hue and cry that his son has been murdered. Then had disclosed that her husband has got some sort of dispute with Ghinu in the background of theft of pumping set for which he was putting finger towards her husband. During cross-examination had said that they are Bataidar of Santosh Singh. Then had disclosed that the place where pumping set was lying situate two miles away from her house. 20. PW-8 happens to be uncle of deceased. He had simply said that on the alleged date of occurrence Nako has gone to the place of boring for surveillance of pumping set along with diesel and Khanti. On the following morning, his dead body was found. Further disclosed that on account of boring sunk by Nako Singh, Ghinu Singh was sustaining loss and for that there was quarrel amongst them two days ago. During cross-examination had disclosed that Ghinu Singh had threatened Nako in his presence about one or two months ago from the date of occurrence. The boring of Radha Kant Prasad lies 15 to 20 feet eastern south corner. 21. PW-9 happens to be the informant, he had reiterated the version whatever he had narrated in the Fardbeyan. During cross-examination had said that he had disclosed the I.O. with regard to threatening given by Ghinu. He had informed the police about two months ago. PW-10 had simply exhibited his signature over seizure list which was prepared by the I.O. on account of production of sword and knife by Girdhari. 22. Therefore, from the nature of material evidence as discussed above it is evident that save and except PW-5, Girdhari Rishi, none had deposed to the extent of casting any sort of doubt against the accused save and except the parties were on constraint relationship which has arisen on account of theft of pumping set of Ghinu, as well as on account of sinking of boring by the deceased. So far as evidence of PW-5 is concerned, taking into account his conduct, the same appears to be suffering from some sort of vagrancy that too in the background of the fact that Arun Singh had cut away earth from his land during course of digging of pond. So far as evidence of PW-5 is concerned, taking into account his conduct, the same appears to be suffering from some sort of vagrancy that too in the background of the fact that Arun Singh had cut away earth from his land during course of digging of pond. So it gives an improbable story that in the aforesaid background accused persons will dare to come to his place and will hand over blood stained sword, knife for concealment. Even accepting for a moment, this part is not going to incriminate the accused. Not only this, there was no effort on behalf of prosecution to get the blood stain chemically examined with the blood of deceased to connect that the blood found over swords knief was that of deceased. Apart from this the sanctity of evidence of PWs has itself been ruined by PW-6, his brother. 23. Where the case happens to be based upon circumstantial evidence, the law as settled at rest by the Hon’ble Apex Court happens to be that the link inter-mingled with the circumstances should be complete in a chain in such a way which could lead only and only hypothesis towards guilt of the accused. If any link is found to be missing, the benefit has to go in favour of the accused. The evidence of the material witness as discussed above do not form a chain of circumstance to connect the accused persons with the commission of the offence. 24. So far evidence of PW-11 is concerned, on account of absence of material evidence, it has gone worthless as his objective finding over inspection of place of occurrence as well as his subsequent action has not improved the case of the prosecution. 25. Thus, after analyzing and scrutinizing the evidence on record it is crystal clear that prosecution has not been able to substantiate its case beyond all reasonable doubt. Consequent thereupon, the finding and sentence recorded by the learned lower court is set aside. Both the appeals are allowed. 26. All the appellants are on bail hence are discharged from its liability. 27. At this moment, it will be unjust for me to ignore the assistance rendered by learned Amicus Curiae, Mrs. Meeta Sinha. For that she will be entitled to receive her remuneration. I agree.