JUDGMENT D.N. PATEL, J. 1. This appeal has been preferred against the judgment of conviction and order of sentence, both dated 6th August, 2003, passed by the 1st Additional Sessions Judge, Seraikella in S.T. Case No. 304 of 1998. This appellant has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 10.000/-. Case of the Prosecution 2. Case of the prosecution is that P.W.5, who is father of the deceased, informed Kuchai Police Station, District Seraikella Kharswan on 12th April, 1998 that this appellant accused has committed murder of his son Moika Soy (deceased) on the same day, i.e. on 12th April, 1998 at about 15.30 hours and that he (P.W.5) got information of this offence from P.W.11. On the basis of this Fardbayan, First Information Report was lodged. Investigation was carried out, statement of various witnesses have been recorded, charge-sheet was filed and the case was committed to the Court of Sessions, where it was numbered as S.T. Case No. 304 of 1998. The murder took place at the house of the P.W.4 (Kartik Gope) and on the basis of the deposition of P.W.1 to P.W.14, this appellant was convicted and sentenced to undergo Rigorous Imprisonment for the offence punishable under Section 302 IPC and to pay a fine of Rs. 10,000/-. Argument of the counsel for the appellant: 3. No actual eye witness to the incident. It is submitted by counsel for the appellant that there is no eye witness to the incident in question. The so called eye witnesses, i.e. P.W. 3, P.W.4 and P.W.6, have never told before the learned trial court that they have seen the accused committing murder of the deceased. On the contrary, P.W.4 stated in his examination-in-chief that this accused came to the place of offence, i.e. house of the so called eye-witness P.W.4, after the incident was over. It is also submitted by counsel for the appellant that P.W.3 and P.W.6 stated that they went to the place of occurrence immediately but by that time the incident was over. Depositions of this witnesses are absolutely vague and therefore, they are not the eye-witnesses to the incident. It is also submitted by counsel for the appellant that P.W.3 and P.W.6 stated that they went to the place of occurrence immediately but by that time the incident was over. Depositions of this witnesses are absolutely vague and therefore, they are not the eye-witnesses to the incident. It is submitted by counsel for the appellant that out of total 14 witnesses only P.W.4 was present there as an eyewitness, but he also had not deposed that he saw the accused committing murder of the victim. On the contrary, P.W.4 deposed that this appellant came to his house after the incident. Therefore, there is no eye-witness to the occurrence. 4. Inconsistency in the deposition of the witnesses. The stand taken by eye-witness P.W.4 is inconsistent with the deposition of P.W.3 and P.W.6 because as per this so called eye-witness (P.W.4) this accused came later on, i.e. after the incident, whereas P.W.6 have deposed that this accused was present at the place of occurrence after the incident. 5. No F.S.L. Report on record. Moreover, on perusal of paras 6 and 7 of the deposition given by the Investigating Officer (P.W.13), it appears that this witness has stated that no seized bloodstained articles, i.e. axe etc. was sent to the Forensic Science Laboratory. No F.S.L. Report was produced before the trial court. Thus recovery of the weapon is not proved by the prosecution beyond reasonable doubt. This aspect was not appreciated by the learned trial court. 6. Prosecution has based its case on hearsay witnesses. Counsel for the appellant submitted that P.W.5, P.W.7, P.W.8 and P.W.12 are also hearsay witnesses. Informant (P.W.5) was informed by P.W.11 and on perusal of paragraph no. 2 of the deposition of P.W.11, it appears that this witness has heard that this appellant has committed the murder. He has submitted that he has not seen this appellant committing murder of the deceased. Thus, these hearsay witnesses have failed to prove the offence of murder beyond reasonable doubt. 7. P.W.10 not referred to in the charge-sheet. Moreover, prosecution has examined an Advocate's Clerk as P.W.10, who is not a witness referred to in the charge-sheet and who had no knowledge of the incident at all. Thus, these hearsay witnesses have failed to prove the offence of murder beyond reasonable doubt. 7. P.W.10 not referred to in the charge-sheet. Moreover, prosecution has examined an Advocate's Clerk as P.W.10, who is not a witness referred to in the charge-sheet and who had no knowledge of the incident at all. Moreover, despite the fact that this witness has deposed that the Fardbayan was not recorded in his presence, learned trial court, without application of mind, has allotted an exhibit number (Ext.-3) to the Fardbayan of P.W.5. 8. It is submitted by counsel for the appellant that in the light of aforesaid, judgment of conviction and order of sentence passed by the trial court deserve to be set aside and this appellant, who has remained in indicial custody for more than 15 years, may be released. Argument of the State: 9. Reliable eye-witnesses. Learned A.P.P. submitted that case of the prosecution is based on the deposition of P.W.4, P.W.3 and P.W.6, who were at the place of occurrence immediately after the murder and they saw this appellant with a bloodstained weapon (Axe) in his hand near the dead body of Moika Soy, Therefore, on the basis of their depositions, place of occurrence, date of occurrence, time of occurrence and weapon used in the murder is proved. 10. No major omission, contradiction and improvement in the deposition of the witnesses. There is no major omission, contradiction and improvement in the deposition of the prosecution witnesses. 11. Immediate F.I.R. The F.I.R. was lodged immediately after the incident and appellant is named in the same. He was caught by the villagers after he committed the murder. 12. It is submitted by the learned A.P.P. that on the basis of the aforesaid evidences prosecution has proved its case beyond reasonable doubt and on proper appreciation of the said evidences learned trial court rightly held the appellant guilty for committing murder of deceased Maika Soy. Observation of this Court: 13. Having heard counsel for both sides and looking to the evidences on record, following facts can be ascertained. 14. Facts on record. The incident of murder has taken place on 12th April, 1998 at about 15.30 hours. Fardbayan of P.W.5 was recorded on 12th April, 1998. P.W.5 (informant) is the father of the deceased. Observation of this Court: 13. Having heard counsel for both sides and looking to the evidences on record, following facts can be ascertained. 14. Facts on record. The incident of murder has taken place on 12th April, 1998 at about 15.30 hours. Fardbayan of P.W.5 was recorded on 12th April, 1998. P.W.5 (informant) is the father of the deceased. He was informed by P.W.11 that his son Maika Soy has been murdered at the house of P.W.4 by this appellant. Upon this Fardbayan, F.I.R. was lodged. Investigation was carried out. Charge-sheet was filed and on the basis of the evidences, 1st Additional Sessions Judge, Seraikella in S.T. Case No. 304 of 1998 convicted this appellant under Section 302 IPC for committing murder of the deceased and sentenced him to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 10.000/-. 15. Eye-witnesses claimed by the prosecution are not actual eye-witnesses. Taking into consideration the overall evidences on record. It appears that there are total 14 witnesses examined by the prosecution out of which P.W.3, P.W.6 and P.W.4 are projected as eye-witnesses. 16. P.W.4 is an eyewitness as per prosecution version. He is the owner of the house where the murder has taken place. As per paragraph 1 of the deposition of P.W.4, this appellant was at the place of occurrence after the incident was over and neither this witness saw any scuffle or altercation between this appellant and the deceased nor he saw this appellant committing murder of deceased Moika Soy. Thus, on perusal of his examination-in-chief and cross-examination, he is not an actual eye witness and as per what he has deposed, this appellant accused came later on, i.e. after the incident. Therefore, this witness has not proved beyond reasonable doubt the fact that it is this appellant who has committed murder of the deceased. This aspect of the matter has not been properly appreciated by the learned trial court. 17. P.W.3 and P.W.6 on perusal of the deposition of P.W.3 and P.W.6, it appears that by the time they reached the place of occurrence the whole incident was over. On perusal of the deposition of P.W.3, it appears that this witness has not seen the occurrence of murder. He has stated that on hearing alarm he rushed to the place of occurrence and saw the bloodstained axe in the hands of the appellant. On perusal of the deposition of P.W.3, it appears that this witness has not seen the occurrence of murder. He has stated that on hearing alarm he rushed to the place of occurrence and saw the bloodstained axe in the hands of the appellant. He had not stated that he saw the appellant committing murder of the deceased. This witness has not even stated that he saw the appellant near the dead body. Deposition of P.W.6 is similar to that of P.W.3. This witness has also not stated that he saw this appellant committing murder of the deceased and that he saw this appellant in the house of the P.W.4. This witness has also not stated that this appellant had an axe in his hand. Thus, P.W.3 and P.W.6 have taken different stands in their depositions regarding presence of this appellant in the house of P.W.4, i.e. place of occurrence. Further, so called eye-witness P.W.4 is not an eye witness at all because by the time he came to the place of occurrence the incident was over. The case of the prosecution is based on the evidence of eye-witness, i.e. P.W.4, P.W.3 and P.W.6. But, prima facie, the eye-witnesses have taken contradictory stand, i.e. while P.W.4 has stated that appellant was present in his house (place of occurrence) after the occurrence, P.W.6 have not stated before the trial court that she has seen this appellant in the house of P.W.4 near the body of the deceased. Thus, these witnesses have failed to prove the offence of murder beyond reasonable doubt. 18. Examination of P.W.10. The prosecution has also examined an Advocate's Clerk as P.W.10, whose name was not mentioned in the charge-sheet as a witness and who had no knowledge about the occurrence. This is an error and an example of non-application of mind on the part of the Investigating Officer. Public Prosecutor appearing in the case as well as on the part of the trial court. No such witness, who has no knowledge of the incident, should have been examined by the trial court. 19. Fardbayan taken on record as Ext.-3 inspite of being not proved. In spite of the fact that in his deposition P.W.10 has stated that Fardbayan was not recorded in his presence, the same has been allotted an exhibit number (Ext.3) by the learned trial court. 19. Fardbayan taken on record as Ext.-3 inspite of being not proved. In spite of the fact that in his deposition P.W.10 has stated that Fardbayan was not recorded in his presence, the same has been allotted an exhibit number (Ext.3) by the learned trial court. The trial court should have kept in mind that a document can not be given an exhibit number unless it is proved. 20. Other witnesses. P.W.9 and P.W.7, being hostile witnesses, have not proved any offence. Further, P.W.5 (informant), P.W.11 and P.W.12 have also not proved the offence of murder beyond reasonable doubt as they are hearsay witnesses only. 21. No F.S.L. Report on record. It is clearly stated in the paragraphs 6 and 7 of the deposition of Investigating Officer (P.W.13) that neither the so called bloodstained axe was sent to the Forensic Science Laboratory nor any F.S.L. Report has been brought on record. Further this witness has stated nowhere that bloodstained axe was recovered from the physical possession of this accused. 22. Absence of any motive. The prosecution has failed to establish any motive in this case as none of the witnesses have divulge any motive behind the murder. 23. In the light of the aforesaid, prima facie, the prosecution has failed to prove the offence of murder committed by the appellant accused beyond reasonable doubt and the trial court has convicted this appellant without appreciating these aspects of the matter. Moreover, this appellant has been in custody for more than 15 years. 24. In the facts and circumstances discussed above, this criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated, both dated 6th August, 2003, passed by the 1st Additional Sessions Judge, Seraikella in S.T. Case No. 304 of 1998 is quashed and set aside and the appellant is acquitted from the charges levelled against him. Therefore, this appellant, namely Mangu Gope, who is in judicial custody for more than 15 years, is directed to be released forthwith, if not wanted in any other case.