JUDGMENT : Virender Singh, CJ. The appeal on hand has been preferred by accused-appellant Bhola Lohra against the judgment of conviction dated 16.10.2001 and order of sentence dated 17.10.2001 passed by learned Sessions Judge, Lohardaga in S.T. No. 212 of 1998 arising out of Simdega P.S. Case No. 35 of 1998 registered under Sections 302 and 201 read with Section 120-13 of the Indian Penal Code whereby and whereunder accused-appellant was sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code. He was further sentenced to undergo rigorous imprisonment for 3 years for the offence punishable under Section 201 of the IPC with the rider that both the sentences shall run concurrently. 2. The case of prosecution sans un-necessary details, as one finds from the fardbeyan (initial statement) of Latangu @ Banda Lohra father of the deceased-Somra Lohra recorded on 20.04.1998 at 9:30 a.m. near the dead body of Somra Lohra at Chamara Bandh under Simdega police station, is that informant, having come to know from none else but his younger son Rantu Lohra at 7:30 p.m. on 19.04.1998 that on pretext to show eggs of bird namely Panduki, deceased was conveyed by accused Bhola Lohra. (hereinafter to be referred to as accused) started searching his son and during course of search of his missing son, today i.e.; 20-04-98, in the morning, he spotted the marks of blood stains on Godhi Dandh hillock, to which he followed and ultimately found the dead body of the deceased into the lodged water near his land. He noticed two incised injuries on the neck of the deceased apart from the swelling on face, forehead and neck. It is alleged that there was animosity of informant with the father of the Bhola Lohra namely Mangra Lohra because in one litigation, informant had deposed his evidence against him in the Court. It is also alleged that there were blood spots on cloths of accused-appellant, which Mangra Lohra had got washed out. 3. It is alleged that there was animosity of informant with the father of the Bhola Lohra namely Mangra Lohra because in one litigation, informant had deposed his evidence against him in the Court. It is also alleged that there were blood spots on cloths of accused-appellant, which Mangra Lohra had got washed out. 3. On the aforesaid allegations, formal FIR bearing No. 35 of 1998 under Sections 302, 201/34 and 120-B of Indian Penal Code came to be registered in police station Simdega against three accused persons, investigation of wh.ch was undertaken by police Sub-Inspector B.P. Singh (PW 17) and the completion of investigation resulted into filing of challan against all three accused persons, against whom charge for the offence under Sections 302, 201 read with 120-B of the Indian Penal Code was framed for which the appellant stands convicted under Sections 302 and 201. IPC and sentenced in terms of the impugned order. 4. The case of accused person, as one finds from the statement recorded under Section 313, Cr PC, is of denial simplicitor. During cross-examination, it has been suggested by the defence counsel to witnesses that the accused has been falsely implicated which was denied by them. Further, accused person has not chosen to adduce, any evidence in his defence. 5. Learned amicus curiae for the accused-appellant pointed out certain vital flaws in the case of the prosecution viz. prosecution has knowing fully withheld the most important witness namely Rantu Lohra, the younger son of informant to produce and examine in the Court and hence adverse inference under Section 114, Indian Evidence Act can be drawn against the prosecution: none of the witnesses has seen the occurrence rather they deposed hearsay story bearing no evidentiary value; some witnesses exaggerated by producing new story for the first time in the Court that they had seen accused with deceased before occurrence but these statements do not find place in case diary; the recovery of knife has not been made in terms of Section 27 of the Indian Evidence Act because it has not been done in presence of accused on his showing the place of its concealment by him and hence it cannot be taken into consideration as such, the accused-appellant may be extended the benefit of doubt to disturb the conviction as already slapped upon him. 6. 6. Per contra learned AP.P. submitted that there be sufficient evidence on record to prove the guilt of accused and added that the recovery of knife has been made on the basis of confessional statement and hence it is relevant of Section 27 of the Indian evidence Act; the other eye-witnesses have deposed that they had seen deceased with accused just before occurrence and hence non-examination of the younger son of informant is not fatal for the case of prosecution. Thus, the appeal being devoid of merit is fit to be dismissed. 7. The prosecution in order to bring home the charges framed against the accused examined altogether 17 witnesses in this case. Apart front oral evidence, prosecution has also proved and exhibited the signature of Ganesh Kumar on seizure list dated 20-04-98, signature of Ram Hari Prasad on seizure list dated 20-04-98, signature of Firu Mahto on seizure list dated 29-04-98, signature of Ramjee Mahto on seizure list dated 29-04-98. Confessional statement of accused, P.M. report, fardbeyan, inquest report seizure list dated 20-04-98 for lifting blood from P.O., seizure list dated 29-04-98 for recovery of knife and formal FIR, which have been marked as Exhibits-1, 1/1, 1/2, 1/3, 1/4, 2, 3, 4, 5, 6, 6/1 and 7 respectively. 8. PW 1 Vishwakarma Lohara has stated that one and half years ago in night at about 8:00 p.m. informant came holding a lantern in his hand and informed that his cider son Somru Lohra, who was strolling with Bhola Lobra in market, did not return home but on next day the dead body of the deceased was recovered. He has described about the injuries noticed over the dead body. He has also added that accused- Bhola Lohara was caught by Sharif with the help of others, when he was escaping from his village on the date of recovery of dead body. 9. P.W. 2, Kundan Lohra, has stated that Latangu @ Banda Lohra (informant) told him that his son Somru Lohra was conveyed by Bhola Lohara at 7:00 p.m. on 19-04-98 but he did not return whereupon he went to the house of the Mangra Lohra to search informant’s son and asked Mangra Lohra to tell the whereabout of Bhola Lohra whereupon he replied that he had not reached at his house. He also has stated about the post occurrence story revealing the recovery of dead body with fatal injuries caused on his neck. He has stated that in the morning of 20-04-98, Yunush had caught Bhola Lohara who was escaping from his village. 10. PW 3, Ram Kumar Prasad has stated that in the evening at 4 p.m. on the day of occurrence, he had seen accused with deceased and when he arrived at his house at 7 p.m. the father of deceased informed that accused has conveyed his son somewhere. On the very next day the dead body of deceased was recovered. According to him accused had confessed his guilt before Sharif Khan, Enosh Ekka, Gabalu and him. 11. PW 4 Baiju Lohara has stated that when he came at his house from market, he heard that deceased had gone missing and on the next day his dead body was recovered. 12. PW 5 Ganesh Kumar Mehar, PW 6 Firu Mahato, PW 8 Shaligram Lohara and PW 9 Dasharath Mahato turned hostile, who denied their testimony recorded under Section 161, Cr PC during cross-examination conducted by learned A.P.P. in terms of the provision under Section 145 of Indian Evidence Act. 13. PW 7 Khurtu Mistri has stated that he heard that deceased had gone missing and on the very next day his dead body was recovered. According to him accused Bhola Lohara was caught by police and he confessed his guilt before police in proved the written confessional statement of accused in his pen and signature, which has been marked as Ext-2. 14. PW 10 Ramjeet Mahato has stated that the he and Firu Mahato, after noticing a knife in an agricultural land, informed chaukidaar, who picked up the knife for which police prepared seizure list thereafter he made his signature (Ext 1/3) on seizure list. 15. PW 11 Mahesh Prasad Sao, has stated that Bhola Lohara had conveyed deceased on pretext to show his eggs of Panduki in his presence and on next day his dead body was recovered. During cross-examination in para 8 he has stated that at the time of confessing his guilt accused was in police custody. 16. PW 12 Shariff Khan has stated that he heard that deceased had gone missing and on next day his dead body was recovered. During cross-examination in para 8 he has stated that at the time of confessing his guilt accused was in police custody. 16. PW 12 Shariff Khan has stated that he heard that deceased had gone missing and on next day his dead body was recovered. According to him, he along with other had caught the accused on 20-04-1998, while he was escaping form his village. 17. PW 13 Vilokan Tirki has stated that on 9-04-99 in evening he noticed that deceased, his younger brother and on another boy were playing under Peepal tree in front of his house but in the night he had heard that deceased had gone missing. On Monday he saw the dead body of deceased. 18. PW 14 Ibrahim Khan is mukhia of the village, has stated that on 20-04-99 the dead body of the son of informant was found at Chamaradih Bandh. He also noticed that accused, who was caught by some persons, was also present there. 19. Medical Expert PW 11 Dr. K.D. Choudhary has found following anti-mortem injuries at the time of autopsy of dead body of deceased. (A) Rigor mortis was present in all the four limbs. Decomposition started. Lips were apart. Teeth of front side looking from front. Tongue was inside the mouth. Teeth were intact. Both eyes were closed. (B) External Injuries :- (i) Incised wound 4-1/2” X 2-1/2” X 2-1/2” over the lower side of neck, in front portion, cutting trachea and oesophagus and carotid vessels, with massive haemorrhages. (ii) Incised wound 2-1/2” X 2-1/2” X skin deep over the base of neck about 1-1/2” below the injury No. 1. (iii) Incised wound 2-1/2” X 1/4” X skin deep over the neck above injury No. 1. (C) Internal Injuries :- (i) On opening the chest and abdomen, all the abdominal organs were pale in colour. Heart was empty. Large Vessels were empty or collapsed. (ii) All the external injuries were ante-mortem in nature, caused by a sharp cutting weapon like a knife. Injury No. 1 was grievous and others are simple in nature. (iii) Time elapsed since death-About within 24 hrs. In his opinion the death was caused due to shock and heaemorrhage due to injury No. 1. 20. (ii) All the external injuries were ante-mortem in nature, caused by a sharp cutting weapon like a knife. Injury No. 1 was grievous and others are simple in nature. (iii) Time elapsed since death-About within 24 hrs. In his opinion the death was caused due to shock and heaemorrhage due to injury No. 1. 20. PW 16 Latangu @ Banda Lohra is informant of the case namely, has stated that on the day of occurrence his younger son Rantu Lohra informed that on pretext to show eggs of Panduki, his elder son (deceased) was conveyed by accused, who did not return in night and on the next very day his dead body was found. He further has stated that when he went at the house of accused, he was found absent. 21. PW 17 S.I. Baldeo Singh is Investigating Officer has proved fardbeyan (Ext-4) and described about the events occurred before its recording. He had proved inquest report and seizure list dated 20-04-98 (Ext-6/1) prepared for recovery of knife from a land where water was lodged as per discloser statement of accused. He has also stated that co-villagers of informant had given him written confessional statement of accused (Ext-2). 22. From the evidence of witnesses showing the injuries sustained by deceased coupled with findings in autopsy report regarding ante-mortem injuries found over the dead-body as well as its nature, we are of the view that the death of deceased is homicidal. 23. Admittedly there as no eye-witness to occurrence and the entire case of prosecution is revolving on three theories for fixing the complicity of accused in this murder (1) the last seen theory i.e.; accused was lastly seen with deceased at 7 p.m. on the day of occurrence and dead body of deceased was recovered in very next morning near village (2) Extra-judicial confession-Accused had confessed his guilt before his co-villagers (iii) Recovery of weapon on his confession before police; police has recovered the weapon of assault on the basis of confession of accused. 24. 24. The last seen theory is based on statement of informant in FIR i.e; informant’s younger son Rantu Lohara had informed to his father (informant) that on pretext to show eggs of Panduki, deceased was conveyed by one Bhola Lohra at 7 p.m. on the day of occurrence but neither informant has supported this version on oath nor has Rantu Lohara been produced and examined in the Court, which gives a strong ground for taking adverse inference against prosecution under Section 114(g) of Indian Evidence Act. Further the evidence of one witness PW3. Ram Kumar Prasad that in the evening at 4 at p.m. on the day of occurrence, he had seen accused with deceased does not come in the purview of last seen as he had seen deceased with accused at 4 p.m. while case of prosecution is that he was with his younger brother and accused till 7 p.m. on that day. Another witness PW 13 Vilokan Tirki has stated that on 19-04-99 in evening he noticed that deceased, his younger brother and one another boy were playing under Peepal tree in front of his house and thus it is of no use of prosecution as this witness has not disclosed the identity of one another boy as accused. The other evidence on this point is statement of PW 11 Mahesh Prasad Sah has stated on oath in Court that Bhola Lohara had conveyed deceased on pretext to show his eggs of Panduki in his presences. Although the solitary evidence of PW 11 remained uncorroborated hence in the light of above discussed evidence it appears to unsafe to rely yet to find out the truth we, on the strength of section 172, Cr PC, perused the case diary not as an evidence rather to aid in trial and found that he is hearsay witness on this point as per his statement recorded under Section 161, Cr PC hence, we are of the view that the evidence of PW 11, on this point can not be relied. Thus, after meticulously scrutiny of evidence, we are of the view that theory of last seen falls on the ground. 25. So far extra-judicial confession of accused is concerned, we perused Ext-2 and found that accused has scribed at the foot of confessional statement that ‘in this murder his entire family is guilty’. Thus, after meticulously scrutiny of evidence, we are of the view that theory of last seen falls on the ground. 25. So far extra-judicial confession of accused is concerned, we perused Ext-2 and found that accused has scribed at the foot of confessional statement that ‘in this murder his entire family is guilty’. In vernacular, it reads, “Hamne kubul karta hun ki is hatya me ham sab pariwar doshi hun” itself sounds in volume that the confessional statement was got scribed by accused on subjection of coercion to implicate other two accused persons of his family as his brother and father were also made accused in FIR, who faced trial, also in this case but were acquitted by learned lower Court because no evidence revealing their complicity could have been brought against both by prosecution. Here it is also worth to note that two witnesses PW 7 Khuturu Mistri and PW 11 Mahesh Prasad, who had made their signature as witness on Ext-2 (Confessional statement of accused) to show that the recording of confessional statement of accused was made in their presence but they both have also admitted on oath that said confessional statement was recorded in presence of police, which abolished its evidential value, Hence, the theory of extra-judicial confession also stands failed. 26. The last theory of prosecution for proving the complicity of accused is based on Section 227 of the Evidence Act itself stand failed due to its inherent defect as record reveals that accused was already remanded in jail custody on 22-04-99, i.e. after 7 days since the date of his remand in jail custody as such the statement recorded by police can never be said confessional statement leading to recovery in terms of Section 27 of Indian Evidence Act. 27. After churning the entire evidence in its right perspective, we are of the considered view that the prosecution has not been able to prove any of the planks of circumstantial evidence pointing towards the guilt of the accused and it turns out to be a fit case in which the accused deserves the benefit of doubt. Resultantly the instant appeal stands allowed. The conviction and sentenced slapped upon the accused by the learned trial Court is hereby set aside. 28. We have been informed that the accused is languishing in jail for more than 17 years. Resultantly the instant appeal stands allowed. The conviction and sentenced slapped upon the accused by the learned trial Court is hereby set aside. 28. We have been informed that the accused is languishing in jail for more than 17 years. He shall be released forthwith in this case, if not required, in any other case(s). 29. Registry is directed to convey the order to the jail authority concerned without any delay. 30. Learned trial Court be also apprised of the outcome of the instant appeal. 31. A sum of Rs. 3,300/- shall be disbursed to Ms Suchitra Pandey, amicus curiae by the State of Jharkhand for rendering assistance to the Court in the instant Appeal on behalf of accused appellant. Appeal allowed.