JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. The sole appellant Birendra Dusadh has preferred this appeal against his conviction and sentence under Section 302 IPC to undergo rigorous imprisonment for life. The judgment was delivered by the learned 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 203 of 1989/9 of 1989 on 9th July 1990. 2. The law in motion was set in by Chaukidar of village Malkopa on 8.7.1988 stating therein that he heard at village that one Lachhu Mishra of village Sonbarsa had been done way and his corpse was lying near a well at village Bhalua Ahmedchak. The informant rushed and found the corpse which was containing injury upon the chest and abdomen. The narration is resulted into Barun P.S. Case No. 95 of 1988 and investigation divulged commission of offence, so charge-sheet was submitted. The case was found to be triable by the court of session. Accordingly, it was committed and the charges under Section 302 IPC and 27 of the Arms Act were framed against the accused persons. The accused denied implication, so the trial proceeded. 3. The defence of the appellant was of false implication. The trial court after considering the evidence found the appellant guilty. Against the order of conviction instant appeal has been preferred. 4. Before the trial court prosecution had examined Gayitri Devi as P.W. 1, Raj Kishore Mishra as P.W. 2, Dr. Ramashish Singh as P.W. 3, Abhay Kumar Pandey as P.W. 4, Aditya Prasad as P.W. 5, Surya Narayan Lal Das as P.W. 6, and Md. Ilias Ansari as P.W. 7. The documentary evidence included FIR (Ext. 3), Inquest Report and its signature Ext. 4 and 2 respectively and post-mortem of the deceased as Ext. 1. 5. Though the defence has not examined any oral evidence but has exhibited complaint petition No. 8 of 1987 as Ext. A and order- sheet dated 19.9.1989 of complaint case no. 8 of 1987. Trial court after considering the evidence found the appellant guilty and ordered his conviction. 6. Doctor (P.W. 3) has stated that on 9.7.1988 at 8.15 p.m. he conducted the post mortem examination upon the dead body of Lachhu Mishra aged about 30 years, son of Sakal Mishra of village Son-barsa, P.S. Barun, District Aurangabad and found the following injuries:- (i) Bleeding from the nostril. (ii) Two holes on the front portion of the chest. 6. Doctor (P.W. 3) has stated that on 9.7.1988 at 8.15 p.m. he conducted the post mortem examination upon the dead body of Lachhu Mishra aged about 30 years, son of Sakal Mishra of village Son-barsa, P.S. Barun, District Aurangabad and found the following injuries:- (i) Bleeding from the nostril. (ii) Two holes on the front portion of the chest. (iii) One circular opening of wound of 2” diameter inverted margine of irregular shape on the middle of the front of the chest 3” below the sternal notch. (iv) One circular wound 2 ½” diameter on the frontal surface of the chest wall 3” below the right nipple. The doctor has found that the above injuries were sufficient to cause death of the deceased. 7. Oral evidence starts from P.W. 1 who is the wife of the deceased. While deposing she has stated that in the evening she was in her house and her husband was taking dinner. At that very time this appellant and Shri Mahto of Jamhore came there and asked Lachhu Mishra to escape as the police was chasing. Although the three persons ran towards canal, but her husband did not come in the next morning. She received information regarding his killing. She told her Debar Raj Kishore Mishra to ascertain the fact. Raj Kishore Mishra came and stated that Lachhu Mishra was killed. She has further stated that the person who had called Lachhu Mishra from the house, participated in the dacoity. She further deposed that four days prior to the occurrence Shri Mahto and Birendra Dusadh had come out from jail and they were demanding expenses of litigation that was not given. She suspected that her husband might have been killed by the persons who had called him from his house. Though she tried to defend the character of her husband by stating that her husband had never visited the jail, but subsequently admitted that her husband has visited jail in connection with a case of dacoity. P.W. 1 is not an eye witness of the occurrence. 8. P.W. 2 is the person who was requested by P.W. 1 to ascertain the fact about killing of Lachhu Mishra. P.W. 2 has deposed that he heard commotion and later on came to know that his elder brother Lachhu Mishra was done away. He went and saw the corpse which was having firearm injury. 8. P.W. 2 is the person who was requested by P.W. 1 to ascertain the fact about killing of Lachhu Mishra. P.W. 2 has deposed that he heard commotion and later on came to know that his elder brother Lachhu Mishra was done away. He went and saw the corpse which was having firearm injury. He is not an eye witness of the occurrence but has suspected that killing might have been done by accused persons as Lachhu Mishra has declined to pay the expenses which the appellant made in course of litigation. 9. P.W. 4 is a formal witness who has been cited as a witness of inquest. He has deposed that he has not even seen the occurrence rather he was made to sign on a plan paper. P.W. 5 is the police officer who has not conducted the investigation. P.W. 6 is also another police officer and he is not a witness of investigation. P. W. 7 is the investigating officer. 10. The evidence at all which has come out through P.W. 1 and P.W. 2 is that Lachhu Mishra was called in by the accused persons and subsequently his dead body was found. There is no witness of the occurrence and the case is based on circumstantial evidence. In a case of circumstantial evidence the duty of the prosecution is to say that all the circumstances gathered indicate the only hypothesis that it was a conduct of the accused which was responsible for causing death. In the present case, no such evidence has been brought on the record. The proximity of time is also not near from the deposition of P.W. 1 itself. It appears that the deceased has earlier gone to jail. The evidence gathered by the prosecution is not one which could link the offender with the offence. The sketchy evidence cannot be the basis of conviction. Not even an independent witness has been examined who could utter that he has even seen the deceased escaping or going with the appellant at some point of time. The case is based on the sole testimony of P.W. 1 which has not been corroborated in any manner by any of the witness. Not even an independent witness has been examined who could utter that he has even seen the deceased escaping or going with the appellant at some point of time. The case is based on the sole testimony of P.W. 1 which has not been corroborated in any manner by any of the witness. From the house to the place of occurrence many persons must have been present but not even one has been located by the Investigating Officer who could independently corroborated even that part that he has seen the victim either escaping or proceeding with the appellant. The motive of implication appears to be a complaint filed by the mother of the accused for assaulting the complainant’s sister and sister-in-law and taking away property on 30.11.1986. This occurrence is of 8.7.1988 and the police should have gathered more evidence if he wanted to establish the charge. The sketchy evidence cannot be the basis of conviction. 11. In view of the above discussion, the impugned judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellant is acquitted of charge and he is ordered to be discharged from the liability of his bail bonds. Appeal allowed.