ORAL JUDGMENT DHARNIDHAR JHA The present appeal arises out of judgment dated 5.1.1999 passed by the learned 1st Additional Sessions Judge, Bhagalpur in Sessions Trial No. 151 of 1984/69 of 1989 by which the solitary appellant Budhu Tudu was convicted of offence under Section 302 of the Indian Penal Code and after being heard on quantum of sentence was directed to suffer rigorous imprisonment for life. 2. Gulphi Devi, the mother of P.W. 3 the informant of this case, was not found at her house after her sons P. Ws. 2 and 3 came back in the evening. It was learnt that the deceased had gone with P. W. 1 to the toddy shop of one Md. Islam (P.W. 6) where the present appellant was taking toddy prior to arrival of the deceased and her companion. It is stated that the appellant forced the deceased and P.W. 1 Bhairo Tuddu to take toddy along with another, i.e., P.W. 5 Rani Devi. It appears from the evidence that the deceased P.W. 1 Bhairo Tuddu and P.W. 5 Rani Devi along with the present appellant left the toddy shop of Md. Islam (P.W. 6) for their houses. When they were in way, the present appellant wanted sexual favour from Rani Devi who refused and ran away from there. Bhairo Tuddu (P.W. 1) as per the evidence of the witnesses had already left before Rani Devi had left the company of the appellant and the deceased. 3. The deceased did not return home. As per the First Information Report as also the evidence of two sons of the deceased, namely, P.Ws. 2 and 3, a search was made of her in the very night itself but she could not be found nor any clue was given by any one as regards the disappearance of the deceased Gulphi Devi. The dead body of Gulphi Devi was found lying in an Arhar field belonging to the husband of P.W. 5 Rani Devi and after that the full-fledged First Information Report was lodged upon which the investigation was initiated which ultimately ended in trial and the passing of the impugned judgment. 4. While convicting the appellant, the learned trial Judge identified seven circumstances which in the opinion of the learned Judge were forming a complete chain of circumstances pointing unerringly towards the guilt of the appellant by explaining all theories of his innocence. 5. 4. While convicting the appellant, the learned trial Judge identified seven circumstances which in the opinion of the learned Judge were forming a complete chain of circumstances pointing unerringly towards the guilt of the appellant by explaining all theories of his innocence. 5. The first circumstance which was identified by the learned trial Judge was the threatening given out by the present appellant to the deceased and her companions of being killed, if they had not taken toddy. In our opinion, the circumstance of holding of threats if the witnesses and the deceased had not taken toddy appears not satisfactorily established. It true that P.W. 1 had stated that the appellant had threatened all of them to be killed but P.W. 5 did not state like that. Though, she stated that she had also taken toddy when asked by the appellant. The toddy shopkeeper P.W. 6 also did not state anything on this fact and he was tendered. More over, what appears from the evidence of witnesses is that it was mere a request of taking toddy and if the appellant was paying up the cost of toddy offered to the deceased and others then it could not be the reason for killing the deceased. The other circumstance which was noted by the learned trial Judge was that the deceased and the witnesses along with the appellant were coming together to the village. In our opinion, it is not a circumstance as they had taken toddy together and as such, there was nothing unusual in it that they decided to come back to the village together. The third circumstance was that Rani Devi (P.W. 5) was asked by the appellant to extend some sexual favour to the appellant upon which she ran away. We are again of the opinion that it could not be a circumstance as regards the culpability of the appellant in killing the deceased. Rani Devi’s refusal to have sex with the appellant could never be a motive for killing the deceased who as per the evidence of the doctor and post-mortem report was a lady of 55 years and the present appellant could be some where about 24-25 years of age. The fourth circumstance was that of the deceased being last seen in the company of the appellant. The fourth circumstance was that of the deceased being last seen in the company of the appellant. We simply want to point out that the evidence and the record does indicate that the deceased was seen last in the company of the appellant but that by itself could not raise an inference of culpability of the appellant in killing the deceased because there was no motive for the appellant to kill her, though circumstance No. 7 regarding the land dispute between the deceased and the appellant was identified by the learned trial Judge in his judgment. While considering the evidence and materials on record what we found was that P.W. 3 Mirjan Tuddu had given a single line evidence that there was a land dispute between his mother and the appellant, but his brother Bhaijoo Tuddu had not spoken a single word about that dispute. Moreover, the circumstance of land dispute which could be the motive for commission of the offence, was never put as a circumstance adverse to the appellant during his examination under Section 313 of the Code of Criminal Procedure and as such in our opinion the said circumstance was not fit to be used adverse to him. Finding of the dead body could not be any circumstance. Likewise, the abscondance of the appellant from his house could also not be a circumstance. The appellant could have many reasons not to be present in his house at the time when a search was made of him. Above all, there is no evidence that in deed the appellant was ever searched in connection with any part of the incident. 6. After having gone through the relevant evidence, we find that it was virtually a case of no evidence, as was suggested by Shri Abhimanyu Sharma, the learned Additional Public Prosecutor and the conviction of the appellant was not supportable in law. 7. In the result, the appeal succeeds and the same is allowed. The appellant is acquitted of the charge he had been found guilty of. The appellant is on bail. He shall stand discharged from the liability of his bail bond.