JUDGMENT : This appeal is directed against the judgment of conviction dated 31.8.2004 and order of sentence dated 03.09.2004 passed by Sri Ajit Kumar Thakur, Additional Sessions Judge, Ghatshila, in Session Trial no. 336 of 2000 whereby and whereunder, the court having found the appellant guilty of committing murder of Gurucharan Bhuiyan convicted him for the offence punishable under section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution is that on 20.2.2000, at about 2.30 p.m while the informant Gobardhan Bhuiyan (PW4), father of the deceased, was in his house, some of the boys came and informed him that his son Gurucharan Bhuiyan (deceased) is being assaulted by the appellant out side of the house. On hearing this, he as well as his elder son Mahendra Bhuiyan (PW3) went there and saw the appellant assaulting his son Gurucharan Bhuiyan. Upon it, they asked the appellant not to assault his son, but the appellant threatened him of dire consequence. Meanwhile, mother of the appellant asked them to call the village Pradhan. Upon it, they went to call the village Pradhan and when they came back with the village Pradhan, they found Gurucharan Bhuiyan lying in an injured condition. Thereafter, when he proceeded to call village chaukidar, he was chased by the appellant by saying that he is going to call the police, he would also be killed. After some time, when they came along with the chaukidar, they found his son dead and by the side of the dead body, there was a wooden plank and an axe over which blood was there. 3. At about 5.15 p.m when Sub Inspector R. S. Tiwari, Officer-in-Charge, Dhalbhumgarh PS, came to the Police Station, the informant (PW4) gave his fard beyan (Ext.2) upon which formal a FIR was drawn. Thereupon, the police seized said wooden plank and the axe having blood marks over there under a seizure list (Ext.3). The investigating officer held inquest on the dead body of the deceased and prepared an inquest report. Thereafter the dead body was sent for post mortem examination which was done by Dr. Om Shankar (PW5). Upon holding autopsy on the dead body of the deceased Gurucharan Bhuiyan, he found the following ante mortem injuries on the person of the deceased : 1. Thereafter the dead body was sent for post mortem examination which was done by Dr. Om Shankar (PW5). Upon holding autopsy on the dead body of the deceased Gurucharan Bhuiyan, he found the following ante mortem injuries on the person of the deceased : 1. Sharp cut 7 c.m. x 1 c.m. on frontal skull bone; Cavity deep just above the left eyebrow; 2. Sharp cut 2 c.m. x 5 m.m. through the lip on the lower lip. 3. Lower both incissors 1 and 2 mobile, not uprooted. Haemtoma present. 4. Sharp cut 4 c.m. x 8 m.m. x 2 c.m. deep on sub-mandibular region; clot present. 5. Fracture, left maxillary bone. According to him, injuries no.1, 2 and 4 were caused by sharp cutting instrument, whereas injury no. 5 was caused by a hard and blunt substance. Injury no.3 has been caused by hard blunt substance or same instrument causing injury no. 2 The Doctor (PW5) issued post mortem examination report (Ext.4) with an opinion that death of the deceased was caused due to shock and haemorrhage on account of above noted injuries. 4. On completion of the investigation, charge-sheet was submitted upon which cognizances of the offence was taken and the case was committed to the court of sessions where the accused/ appellant was put on trial. 5. After the case of the prosecution was closed, incriminating evidences appearing against the appellant were put to the accused under section 313 Cr. P. C which he denied. There upon the trial court having found the witnesses, Pws. 1, 3 & 4 to be trustworthy, whose testimonies is getting corroboration from the medical evidence, recorded the order of conviction and sentence which is under challenge in this appeal. 6. When the case was called out, nobody appeared on behalf of the appellant. However, with the assistance of the learned counsel appearing for the State, we went through entire record of the case in order to dispose of this appeal. 7. It is the case of the prosecution from the beginning that while the informant PW4 was in his house, he was informed by some of the boys that his son Gurucharan Bhuiyan is being assaulted by the appellant in front of his house. 7. It is the case of the prosecution from the beginning that while the informant PW4 was in his house, he was informed by some of the boys that his son Gurucharan Bhuiyan is being assaulted by the appellant in front of his house. On hearing this, PW4 along with his son Mahendra Bhuiyan (PW3) went there and found the appellant assaulting Gurucharan Bhhiyan with a wooden plank and also with an axe. On seeing this, when Pws 4 and 3 asked the appellant not to assault Gurucharan, they threatened him. In the meantime, mother of the appellant asked them to call the village pradhan. Upon it, as per evidence of PW4, while his son went to call village Pradhan, he remained there, but this piece of evidence does not find corroboration from the statement made in the fard beyan wherein it has been stated that both of them (he and his son PW3) had gone to call the village Pradhan. Further, it would be worthwhile to record here that so far as the testimony of PW4 that he saw the appellant assaulting his son Gurucharan with wooden plank and axe also does not find corroboration from his earlier statement in the fard beyan wherein he had stated that when he along with his son went there, they saw the appellant assaulting and dragging his son out of the house. Further, it has also come in the evidence of PW4 that when his son (PW3) went to call the village Pradhan, the appellant, in the meantime, assaulted the deceased, which fact is not consistent with earlier statement made in the fard beyan wherein he had stated that when he came to the place of occurrence, he found the appellant abusing and assaulting the deceased with fists and slaps, but in his evidence he has testified in the manner as stated above which is not worth believable. However, PW3 has testified that when he along with his father (PW4) on being informed by some of the boys, came to the place of occurrence, he saw the appellant assaulting the deceased with wooden plank and axe, which evidence does not inspire confidence to be believed, as according to PW4, when PW3 came along with him at the place of occurrence, PW3 went away to call village Pradhan. Under the situation, the testimonies of both the witnesses, Pws 3 and 4, that they had seen this appellant assaulting the deceased with 'kulhari' and wooden plank cannot be accepted. While coming to this finding, we can also record that there is no legal evidence to the effect that the Pws 3 and 4 even saw the appellant assaulting the deceased with fists and slaps. Further, we do find that PW2 in his evidence has said that when on hearing hulla he came to the place of occurrence, he found an axe as well as the wooden plank lying over there with blood clots. The said fact has also been stated by PW4, but those weapons never seem to have been produced in the court. Further more, the investigating officer has also not been examined and that apart, the village Pradhan to whom PWs 3 and 4 informed about the incident has also not been examined by the prosecution, though he had reached at the place of occurrence. Under the circumstances, we do find that the prosecution has failed to establish his case beyond all reasonable doubt. In spite of that, the trial court recorded the order of conviction and sentence of the appellant which is fit be set aside. 8. For the reasons aforesaid, this appeal is allowed. The judgment and order of conviction and sentence dated 31.8.2004 and 03.09.2004 passed by the trial court in Sessions Trial No. 336 of 2000 is hereby set aside and the appellant is acquitted of the charge under 302 IPC. Hence, he is directed to be released forthwith, if not required in connection with any other case. Thus, this appeal stands allowed.