JUDGMENT : SMT. ANJANA PRAKASH, J. 1. The sole Appellant has been convicted under Section 302 Indian Penal Code and sentenced to undergo rigorous imprisonment for life with fine of Rs.10,000/- by the judgment of conviction dated 23.05.2012 and order of sentence dated 26.05.2012, passed by the Additional Sessions Judge, Fast Track Court No. V, Ara, in Sessions Trial No.123 of 2009. 2. The case of the prosecution according to Surja Devi (PW 5), mother of 10 years old child, Vasundhara Kumari, is that on 07.08.2008 at about 1.00 PM she had gone to buy biscuit but she did not return, so, she and her Sautan, Rajpati Kunwar, (PW 4), went looking for her. While they were looking, on the way, they found the Appellant, Sheo Kumar Chaudhary, coming out of the house with her daughter in his lap and seeing them threw the dead body in the northern field in front of his door and went inside his house. They then screamed and ran to see the child and found her dead with marks on her neck. She believed that the Appellant had killed her daughter because of old enmity as also committed rape upon her. On hearing halla, several villagers, namely, Nathuni Chaudhary (PW 1), Chandrama Chaudhary (PW 3), Nand Kumar Chaudhary (PW 2) and some others came. Information was sent to the Police whereafter they came and recorded the fard-e-bayan. 3. During trial, the prosecution examined eight witnesses. 4. It is notable that even though initially the case was instituted under Sections 376, 302 Indian Penal Code but charge-sheet was not submitted under Section 376 Indian Penal Code since the Doctor did not find any sign of rape as is evident from the evidence of the Dr. Deepak Kumar (PW 7), which is reproduced below. 1. Multiple bruises around face area. Pevi oral region. Right and below the nose and right cheek size varies on 1/2” x 1” to 1” x 1-1/2”. 2. Bruise 1-1/2” x 1” at chin. 3. Five bruise-Size 1/2” x 1/4” to 1/2” x 3/4” at base of neck and anterior part of chest near sternal area. 4. Right side eye congested and left eye normal. Vaginal examination: On examination of internal genital organ-Valva normal, no abrasion mark on either side. Labia Minora- No sign of abrasion or bruise. Urethral opening present. Normal. Hymen- patent. 3. Five bruise-Size 1/2” x 1/4” to 1/2” x 3/4” at base of neck and anterior part of chest near sternal area. 4. Right side eye congested and left eye normal. Vaginal examination: On examination of internal genital organ-Valva normal, no abrasion mark on either side. Labia Minora- No sign of abrasion or bruise. Urethral opening present. Normal. Hymen- patent. On dissection: Thorax- Right anterior part of thoracic ribs 5th and 6th are fractured. Thoracic cavity is full of blood and blood clots. Right Lung is lacerated and pale. Left lung is patent and pale. Heart-Both chambers empty. Abdominal cavity-coils of gut distended. Stomach-digested, liver, spleen, and kidneys pale, bladder-empty. Skull- Brain appears normal. Vaginal swab examination is done. Report shows- No spermatozoa present. On the basis of vaginal examination and swab report, it can be said that there is no sexual activity done. Cause of death: (i) Haemorrhage and sock due to above injuries (ii) Asphyxia Time since death- 24 to 48 hours. He proved the Post Mortem Examination Report as Ext.1 5. PW 1 (Nathuni Choudhary) stated that he had seen the Appellant coming out of his house with the dead body of the deceased and throwing it near the house of Indradeo and went inside his own house. When the Informant, Surja Devi, went near the dead body he also went and saw the deceased dead with injuries on her neck. He asserted in cross-examination that he had seen the dead body being taken and had seen it from a distance of about 10 feet. He describes the place of occurrence where the dead body was thrown being east-house of Indradeo, west-open land, north-house of Jai Ram Chaudhay and south-house of Gupteshwar. 6. PW 2 (Nand Kumar Choudhary) stated that at about 2.00 PM he heard halla about throwing of the dead body and then he saw it. He allegedly was not examined by the police and used to live about 1/2 KM away from the place of occurrence but he asserted that he reached within five minutes of having heard halla. However, in cross-examination, he conceded that he had not seen the occurrence and the deceased was his cousin sister. 7. He allegedly was not examined by the police and used to live about 1/2 KM away from the place of occurrence but he asserted that he reached within five minutes of having heard halla. However, in cross-examination, he conceded that he had not seen the occurrence and the deceased was his cousin sister. 7. PW 3 (Chandrama Choudhary) stated that on halla he went to the place of occurrence and saw the dead body of the deceased and also saw the Appellant fleeing away from there and he identified him after which the Chaukidar informed the police which came and Inquest Report was prepared upon which he also signed. In cross-examination, he stated that he had not seen the occurrence and had only seen the dead body at the place of occurrence whereafter the dead body was brought home and Inquest Report was prepared. 8. PW 4 (Rajpati Kunwar) was the Sautan of the Informant, who stated that about 1.00 PM Vasundhara (deceased) had gone to bring biscuit but did not return. She and Informant went looking for her and saw the Appellant bringing the dead body in his lap and throwing it. On hearing halla, Nathuni (PW 1), Chandrama (PW 3) came there also with the police. She stated that the shop was about 25 feet away from her house. 9. PW 5 (Surja Devi) is the Informant, who stated that she instituted the First Information Report that her daughter had not returned after buying biscuit. So, they started looking for her and then saw the Appellant throwing the dead body in the field and hiding in his house. In cross-examination, she stated that the shop was about 10 yards away from her house and the house of the Appellant was about 50 yards from the shop. She further stated that road leading to the house of the Appellant from the shop was curved and there was a turning in between and east to his house was house of Jag Mohan, Nathuni, west- her own house, south-house of Krishna Chaudhary, north-house of Nathuni. She conceded that she had not seen the Appellant killing her daughter but had seen the dead body in his lap. She also stated that the Appellant used to steal fishes which she used to catch and, therefore, she had grievance against him. She further stated that number of villagers gathered on her screaming. 10. She conceded that she had not seen the Appellant killing her daughter but had seen the dead body in his lap. She also stated that the Appellant used to steal fishes which she used to catch and, therefore, she had grievance against him. She further stated that number of villagers gathered on her screaming. 10. PW 6 (Deo Prakash) is the brother of the deceased, who also stated that his mother had gone looking for his sister and then seen the Appellant throwing the dead body. He proved his signature on the fard-e-bayan as Ext.1. He further stated that the place of occurrence was 15 yards away from his house and he himself had seen the Appellant carrying the dead body. 11. PW 8 (Ram Niwas Choudhary) is the Investigating Officer, who proved his signature on the fard-e-bayan as Ext.2 and that he got prepared the Inquest Report which is marked as Ext.3. He describes the place of occurrence being open filed of Rana Choudhary from where the dead body was recovered. He also proved the Case Diary as Ext.4. His attention was drawn to some statement of the witnesses given earlier but they are not relevant. 12. On going through the evidence of the witnesses, we find that there is no direct evidence in regard to the actual murder. The case is based on sole circumstance that the Appellant had been seen carrying the dead body and throwing it. However, this circumstance also does not appear to be reliable when it is not explained as to why the Appellant was not caught right after the occurrence when he remained in his house and several male members including PWs 1, 2, 3 and 6 arrived. We also find from the evidence of PW 1 that the dead body was found near the house of one Indradeo which is confirmed by the Investigating Officer, but there is no reliable material as to the distance between the house of the Appellant and the field where dead body was recovered. The topography which has been given does not show that it was anywhere close to the house of the Appellant which makes it difficult for us to accept that the Appellant in full public view would be carrying a dead body to some distance in the middle of the after noon after having committed murder of the child. 13. The topography which has been given does not show that it was anywhere close to the house of the Appellant which makes it difficult for us to accept that the Appellant in full public view would be carrying a dead body to some distance in the middle of the after noon after having committed murder of the child. 13. Further from the evidence of the Informant it appears that there was reason for her to implicate the Appellant on account of earlier grouse and, thus, we find that the sole circumstance is also not fit to be fully relied upon to maintain the conviction of the Appellant. 14. In such circumstances, the Appellant is acquitted of the charge leveled against him by giving him benefit of doubt and the judgment of conviction dated 23.05.2012 and order of sentence dated 26.05.2012, passed by the Additional Sessions Judge, Fast Track Court No. V, Ara, in Sessions Trial No.123 of 2009, is hereby set aside. 15. The Appellant, who is in jail, is directed to be released forthwith if not required in any other case. 16. The appeal stands allowed. Appeal allowed.