JUDGMENT : 1. Both these appeals arise out of the same Judgment of conviction and Order of sentence and as such, they are heard together and disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsels for the State in both the appeals. 3. The appellants are aggrieved by the Judgment of conviction and Order of sentence dated 14th May 2010, passed by the learned Sessions Judge, Lohardaga, in S.T No. 2 of 2004/S.T No.18 of 2004, whereby, the appellant Shajahan Ansari @ Bibia Ansari has been found guilty and convicted for the offence under Sections 302, 201 of the Indian Penal Code, whereas the appellant, Fatima Tirkey has been found guilty and convicted for the offence under Section 120-B of the Indian Penal Code. Upon hearing on the point of sentence, the appellant, Shajahan Ansari @ Bibia Ansari has been sentenced to undergo imprisonment for life and fine of Rs.5,000/- for the offence under Section 302 of the Indian Penal Code and R.I for seven years and fine of Rs.2,000/- for the offence under Section 201 of the Indian Penal Code. The appellant, Fatima Tirkey has been sentenced to undergo imprisonment for life and fine of Rs.5000/- for the offence under Section 120-B of the Indian Penal Code for conspiring to commit the murder of the deceased. 4. According to the prosecution case, a dead body of an unknown male was found under a culvert on a road, concealed in the hume-pipe. The Chowkidar, Harihar Mahto, who was informed about the dead body and he also found the dead body, informed the police, whereupon the police came and the dead body was brought out from the hume-pipe. The fardbeyan of the informant Chowkidar, Harihar Mahto were recorded on 5.9.2003 at 9:50 hours at the place where the dead body was found, on the basis of which, Bhandra P.S Case No. 21 of 2003, corresponding to G.R No.296 of 2003, was instituted for the offence under Sections 302, 201/34 of the Indian Penal Code against unknown, and investigation was taken up. Subsequently, the dead body was found to be of one Shyam Verma on the basis of the information given by the spy to the Investigation Officer, and some wearing apparels of the deceased were also recovered from a septic tank of Ambera Primary Health Center. Subsequently, the dead body was found to be of one Shyam Verma on the basis of the information given by the spy to the Investigation Officer, and some wearing apparels of the deceased were also recovered from a septic tank of Ambera Primary Health Center. During investigation, the appellants were apprehended by the police and on the basis of the confessional statement of the appellant, Shajahan Ansari @ Bibia Ansari, one axe, said to be used in the commission of the offence, was also recovered from a pond. After completing the investigation, the police submitted the charge-sheet against three accused persons, i.e., both these appellants and the husband of the appellant, Fatima Tirkey, who died during the course of trial. 5. Upon commitment of the case to the Court of Session, charge was framed against all the three accused persons for the offence under Sections 302, 201/34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial in all, sixteen witnesses have been examined by the prosecution, out of whom, P.W.-9, Baljeet Lohara, P.W.-14, Lakshaman Lohara and P.W.-15, Neyamat Ansari, have turned hostile. It may be stated that P.W.-14 and P.W.-15 were the seizure list witnesses of the recovery of the axe from the pond. The said axe, alleged to be used in the offence, and recovered on the basis of the confessional statement of the accused Shajahan Ansari, has not been produced in the Trial Court and marked material exhibit. 7. In order to implicate both the accused persons in the trial, the first witness, examined by the prosecution, is P.W.-5 Inder Lohara. This witness has stated that the occurrence had taken place about one year ago. In the evening at about 5:00 P.M, the accused Fatima Tirkey, who was working as a nurse, asked him to sleep at her house as her daughter was not there in the house and accordingly, he slept in the house of the accused. At about midnight, the accused Bibia Ansari and Rani, who is the daughter of Fatima Tirkey, knocked the door. Fatima Tirkey opened the door and they entered the house and Rani started weeping. Bibia Ansari disclosed that he had committed the murder of Shyam Verma. This witness has stated that the cloths of both of them were bloodstained. At about midnight, the accused Bibia Ansari and Rani, who is the daughter of Fatima Tirkey, knocked the door. Fatima Tirkey opened the door and they entered the house and Rani started weeping. Bibia Ansari disclosed that he had committed the murder of Shyam Verma. This witness has stated that the cloths of both of them were bloodstained. The nurse Fatima asked them by what weapon, the murder was committed, which the accused replied saying that he had assaulted the deceased by Tangi. When Fatima asked about the dead body, he replied that the dead body was concealed under the culvert. Accused Bibia Ansari also demanded money from Fatima and thereafter, Bibia Ansari went to his house. This witness slept in that house in the night. In the morning, Fatima asked this witness whether he got the knowledge of the occurrence, which he answered in affirmative, whereupon he was threatened by Fatima not to disclose to anyone otherwise he would also be killed, and in the morning, Fatima Tirkey, Bibia Ansari and Rani went to Lohardaga on a commander jeep. This witness has also stated that his statement was recorded before the Magistrate and he has identified both the accused persons in the Court. During his cross examination this witness has stated that his statement was recorded by the police after about one month of the occurrence and he has denied the suggestion not to have given the statement before the police that Fatima had threatened him not to disclose the occurrence before anyone. He has also admitted that he had not seen any transaction of money and he has denied the suggestion to have given the false evidence. 8. P.W.-6 Budhani @ Budhain Devi, is the mother of P.W.-5 Inder Lohara. This witness has stated that nurse Fatima used to live in her house along with her daughter and thereafter, she got a quarter in the hospital and she started living in the hospital. On the day of occurrence, the nurse had asked her son to sleep in her house as her daughter had gone to Lohardaga. In the night itself, her daughter returned back and on the next day, Fatima, her daughter and Bibia Ansari went to Lohardaga on a commander jeep. To the Court's question, this witness has stated that till date, her son had not informed her about any occurrence. 9. In the night itself, her daughter returned back and on the next day, Fatima, her daughter and Bibia Ansari went to Lohardaga on a commander jeep. To the Court's question, this witness has stated that till date, her son had not informed her about any occurrence. 9. P.W.-7 Purshotam Yadav has only stated that on 5.9.2003 he heard that there was a dead body in the culvert and he saw the dead body. The Chowkidar informed the police and the dead body was taken out which was having injury on the neck with sharp cutting weapon and the face was badly damaged, due to which, it could not be identified. He has stated that later, he learnt that the dead body was of Shyam Verma, who was in visiting terms in the house of the nurse of his village. 10. P.W.-8 Harihar Mahto is the Chowkidar who had found the dead body and had informed the police, whereupon the dead body was taken out from the culvert. Though he has stated that he did not remember whether his statement was recorded by the police, but he has identified his signature on the fardbeyan, which was marked Exhibit-2. He has stated that on the next day, he learnt that the dead body was of Shyam Verma. 11. P.W.-10 Mangal Sai Uraon, is the seizure list witness, who has proved his signature on the seizure list of the shoes and a burnt jacket of the deceased and on his identification, his signature was marked Exhibit-3 in the seizure list. He has stated that the accused Fatima was a nurse in the hospital at that time. 12. P.W.-11 Shahajad Khan is a hearsay witness, who had heard about the murder of Shyam Verma, and he has not stated anything else. 13. P.W.-13 Shushila Tigga has stated that on 31.8.2003, Shyam Verma, who used to live with the daughter of Fatima, had come to him and had stated that Fatima, Barsha Rani and Sagar Tirkey were planning to commit his murder and on 5.9.2003, she was informed by someone that when Barsha Rani was going with two other persons, someone assaulted Shyam Verma from behind and Barsha Rani fled away from that place. 14. 14. P.W.-1 Jaideep Tigga was working as Block Development Officer, Bhandra, before whom on 6.10.2003, the T.I. of the seized apparels of the deceased was held, which were identified by two brothers of the deceased. This witness has identified the T.I Chart which was marked Exhibit-1. P.W.-2 Jagdish Singh is a witness to the T.I Chart, who has proved his signature on T.I chart, which was marked Exhibit-1/1. 15. P.W.-3 Guddu Sahu and P.W.-4 Kantu Sahu had also seen the dead body of the deceased and the inquest report and the seizure list were prepared before them. 16. P.W.-12, Ram Eqbal Prasad Yadav is the Investigating Officer of the case who has stated that on 5.9.2003 at about 9:00 A.M, he was informed about the presence of a dead body in the hume-pipe, whereupon, he went to the place of occurrence and recorded the fardbeyan of the Chowkidar, Harihar Mahto. He has proved the fardbeyan to be in his pen and signature and has also proved the endorsement over the fardbeyan to be in the handwriting and signature of the Officer In-charge of the Police Station, which were marked Exhibits- 4 & 4/1 respectively. He has stated that he also prepared the inquest report of the dead body which also he has proved and the same was marked Exhibit-5. At a distance of about 5' from the place from where the dead body was recovered, the bloodstained earth was found, which he seized and also prepared the seizure list, which he proved, and the same was marked Exhibit-6. He has given the details of the place from where the dead body was recovered and has stated about the investigation made by him, in which, he recorded the statements of the witnesses. He has also stated that in course of investigation, he got the information through spy that the deceased was Shyam Verma, and he made investigations about the deceased, in course of which, from Lohardaga Police Station, he learnt that deceased was an accused in Lohardaga P.S. Case No.37 of 2002 for the offence under Section 366-A, which was instituted by the informant Fatima Tirkey (who is an accused in this case), for kidnapping of her daughter, in which, after investigation, the police had submitted the charge-sheet for the offence under Sections 363, 376 and 366-A of the Indian Penal Code. He also received the post-mortem report of the dead body. Thereafter, one spy informed him that some wearing apparels of the deceased, Shyam Verma were visible from a septic tank situated in Ambera Primary Health Center (where Fatima was working as Nurse), whereupon the I.O recovered one pair of shoes with burnt sole, one half burnt full Jacket and a belt, and he prepared the seizure list, the copy of which was also given to Fatima Tirkey. He has proved the seizure list which was marked Exhibit-8. This witness has stated that he submitted charge-sheet against Fatima Tirkey and Barkha Rani Tirkey, the daughter of Fatima Tirkey, and also arrested them. He got the T.I. Parade, conducted of the recovered apparels of the deceased before the B.D.O., and he also got the statement of the witness, Inder Lohara recorded before the Magistrate under Section 164 of the Cr.P.C. This witness has also stated that he continued the investigation and he recorded the confessional statement of Shajahan Ansari, on the basis of which, the axe used in the commission of offence was recovered from a pond. He has proved the confessional statement of the accused, Shajahan Ansari, recorded by him which was marked Exhibit-9. He has also proved the seizure list of the recovery of axe from the pond and has stated that he had obtained the signatures of two independent witnesses on the said seizure list, which was marked Exhibit-10. He has also proved the formal FIR, which was marked Exhibit-11 and after completing the investigation, he submitted the charge-sheet. In his cross examination, this witness has admitted that he had not sent the bloodstained earth or the axe for forensic examination and he has also admitted that the axe was not presently available in the Court. He has denied the suggestion to have made faulty investigation. 17. P.W.-16 is Dr. Ajay Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 5.9.2003 ( inadvertently written 15.9.2003 in the evidence) and had found the following ante-mortem injuries on the dead body of the deceased:- Injury No.1. - Lacerated wound over right half of the face size 7”x6”x bone deep. Right eye was eviscerated. The brain matter was lacerated. Right maxillary bone, right frontal bone were found fractured. Injury No. II- Lacerated wound over left angle of mouth size 2” x 1/2”x muscle deep. - Lacerated wound over right half of the face size 7”x6”x bone deep. Right eye was eviscerated. The brain matter was lacerated. Right maxillary bone, right frontal bone were found fractured. Injury No. II- Lacerated wound over left angle of mouth size 2” x 1/2”x muscle deep. Injury No. III- Incised wound over left eyebrow (upper part) 2” x 1-1/2” x muscle deep. Injury No. IV-Lacerated wound over the left side of the occipital region of the head size 3” x 2”x bone deep. The brain matter was lacerated and blood clot was present. Injury No. V- Lacerated wound 3” below left ear. Size 4”x1/2”x bone deep. Injury No. VI- Sharp cutting injury at the level of 7th cervical vertebra causing incomplete separation of head from neck except thyroid cartilage and skin covering it. Injury No. VII- Incised wound over left scapular region. Size 8”x3”x muscle deep. Injury No. VIII- Incised wound just 1 cm below the injury No. VII size 9”x2”x muscle deep. Apart from these external injuries, the internal injuries were in continuation of injury No.1, the frontal and maxillary bones were fractured. The brain matter was lacerated in continuation of injury No. IV, the occipital bone was fractured, the brain matter was lacerated and blood clot was present. In continuation of injury No.VI, all the major vessels and nerves were already cut. Right heart empty, left chamber empty, lungs, kidney, liver and spleen were pale, bladder empty. In stomach semi digested foodand gas were present. The doctor has opined that all the injuries were ante-mortem in nature and injury Nos. I, IV and VI were sufficient to cause death in the ordinary course of nature. Injury Nos. I, II, IV and V caused by hard and blunt substance and injury Nos. III, VI, VII and VIII caused by heavy sharp cutting weapon. Time elapsed since death was within twenty four hours. On suggestion given by the prosecution, the witness has deposed that injury Nos. III, VI, VII and VIII could be caused by bhujali or gharsa. He has identified the postmortem report to be in his pen and signature, which was marked Exhibit-13. In his cross-examination he has stated that he did not find the face of the dead body to be crushed. 18. III, VI, VII and VIII could be caused by bhujali or gharsa. He has identified the postmortem report to be in his pen and signature, which was marked Exhibit-13. In his cross-examination he has stated that he did not find the face of the dead body to be crushed. 18. Learned counsel for the appellant, Fatima Tirkey has submitted that even though this appellant has been convicted for the offence under Section 120-B of the Indian Penal Code for conspiring to commit the murder of Shyam Verma, but no charge has been framed for the offence under Section 120-B of the Indian Penal Code against this appellant. It is submitted that though in the statement recorded under Section 313 of the Cr.P.C, a question was put to this appellant that prior to the occurrence, she used to say that she would pay Rs.10,000/- to 15,000/- to anyone who would commit the murder of Shyam Verma, but there is no such evidence on record and it appears to have taken only from the statement of P.W.-5 Inder Lohara, recorded under Section 164 of the Cr.P.C., but no such evidence has been given by P.W.-5 in the Court. As such, there is no substantial evidence on record for putting such question, which ultimately, was denied by the appellant. 19. Learned counsel has further submitted that except the evidence of P.W.-5 Inder Lohara, there is no evidence against the appellant, Fatima Tirkey and even in the evidence of P.W.-5 Inder Lohara, there is nothing to suggest that the appellant Fatima Tirkey had ever entered into any conspiracy to commit the murder of Shyam Verma. It is only stated that the accused, Bibia Ansari demanded money from the accused Fatima Tirkey, but this witness has also admitted in his cross examination that no transaction of money was made in his presence. It is submitted by the learned counsel that even otherwise, the evidence of P.W.5, does not inspire confidence, inasmuch as, he has admitted in his cross examination that his statement was recorded by the police for the first time after about one month and he has also admitted that he had not disclosed anything about the occurrence to anyone, P.W.-6 Budhani @ Budhain Devi, who is the mother of P.W.-5, has answered the Court's question, stating that till date, her son had not disclosed anything about any occurrence to her. Learned counsel accordingly, submitted that the conviction of the appellant Fatima Tirkey for the offence under Section 120-B of the Indian Penal Code is absolutely illegal and cannot be sustained in the eyes of law. 20. Learned counsel for the appellant, Shajahan Ansari @ Bibia Ansari has submitted that so far as this appellant is concerned, his conviction is also based on the evidence of P.W.-5 Inder Lohara, who has stated about this appellant that he came in the night in the house of nurse, Fatima Tirkey along-with her daughter and disclosed that he had committed the murder. Learned counsel has adopted the same arguments, challenging the evidence of P.W.-5 Inder Lohara. It is also submitted that the other material against this appellant is that on the basis of the confessional statement of this appellant, there is recovery of the axe allegedly used in the offence from a pond. Learned counsel pointed out from the evidence that the I.O has stated that he had prepared the seizure list and had obtained the signatures of two independent witnesses, who are P.W.-14 Lakshaman Lohara and P.W.-15 Neyamat Ansari, who have turned hostile and have not supported the factum of the seizure at all. The I.O has also admitted that the axe has not been produced in the Court. Learned counsel accordingly, submitted that the prosecution has failed to prove the fact that any axe was recovered on the basis of the confessional statement of the appellant, Shajahan Ansari and accordingly, the said piece of evidence also cannot be relied upon for securing the conviction of the appellant for the offence under Sections 302 & 201 of the Indian Penal Code. Learned counsel, accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 21. Learned counsels for the State, on the other hand, have opposed the prayer and has submitted that the prosecution has been able to prove the charges against both the appellants, beyond all reasonable doubt. It is submitted that apart from the evidence of P.W.-5 Inder Lohara, there is also the evidence of P.W.-13 Shushila Tigga, who had stated that few days prior to the occurrence, the deceased had come to her place and had expressed the apprehension that the accused persons would commit his murder. It is submitted that apart from the evidence of P.W.-5 Inder Lohara, there is also the evidence of P.W.-13 Shushila Tigga, who had stated that few days prior to the occurrence, the deceased had come to her place and had expressed the apprehension that the accused persons would commit his murder. It is further submitted by the learned counsel that in course of investigation, the police had recovered the burnt wearing apparels from the septic tank of Ambera Primary Health Center, where the appellant Fatima Tirkey was working and the copy of the seizure list was also made available to her. This apart, the confessional statement of the appellant Shajahan Ansari has led to the recovery of the axe used in the offence from a pond, which is also proved by the evidence of the I.O, P.W.-12 Ram Eqbal Prasad Yadav. Learned counsel also pointed out that P.W.-6 Budhani @ Budhain Devi, who is the mother of P.W.-5 Inder Lohara has corroborated the fact that in the night of the occurrence, P.W.-5 was staying in the house of the appellant Fatima Tirkey and as such, his presence at the house of the appellant Fatima Tirkey cannot be doubted, and he had heard the extra judicial confession of the appellant Shajahan Ansari, made before the appellant Fatima Tirkey. Learned counsels for the State accordingly, submitted that the prosecution has been able to bring home the charges against both the appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence. 22. Having heard learned counsels for both the sides and upon going through the record, we find that though the appellant, Fatima Tirkey has been convicted only for the offence under Section 120-B of the Indian Penal Code for conspiracy of committing the murder of Shyam Verma, but there is no evidence on record to show that there was any previous meeting of mind between the accused persons for hatching up the conspiracy. Though P.W.-5 Inder Lohara has stated that he had stayed in the night of occurrence at the house of Fatima Tirkey at her request, where in the night, the accused, Bibia Ansari along with the daughter of Fatima Tirkey came and confessed about committing the murder of the deceased and there was also some demand of money by Shajahan Ansari from Fatima Tirkey, but there is nothing in his evidence to show that there was any conspiracy by Fatima Tirkey also, for committing the murder of the deceased and it is an admitted fact by P.W.-5 Inder Lohara that no transaction of money had taken place in his presence. Though this witness has come to know about the occurrence in the night of occurrence itself, but he has kept mum for about one month, where after, his statement was recorded by the police and such a belated statement speaks a lot against the veracity of the evidence. Indeed, P.W.-6 Budhani @ Budhain Devi, who was examined after about two years of the occurrence in the Court below, has stated in her evidence that till date, her son P.W.-5 Inder Lohara had never disclosed to her about the knowledge of any such occurrence. Though P,W.-5 Inder Lohra has stated that when the accused Shajahan Ansari @ Bibia Ansari and the daughter of Fatima Tirky came to the house in the night, their clothes were blood stained, but there is no recovery of these blood stained clothes. In our considered view, the evidence of P.W.5 therefore, is full of doubts and it cannot be made the basis for the conviction of the appellants. We are also of the considered view that the conviction and sentence of the appellant, Fatima Tirkey cannot be sustained in the eyes of law, as no charge under Section 120-B of the Indian Penal Code was framed against her, which is the only offence, for which, she had been found guilty. 23. So far as the piece of evidence that on the basis of the confessional statement of the appellant Shajahan Ansari @ Bibia Ansari, the axe allegedly used in the commission of offence was recovered from a pond, the fact however remains that two seizure witnesses to the recovery of the axe have turned hostile and have not supported this fact at all. In that situation, the prosecution ought to have produced the recovered axe in the Court, but that axe was never produced in the Court and marked material exhibit, as is apparent from the evidence of the I.O, P.W.-12, Ram Eqbal Prasad Yadav, wherein he has admitted that the seized axe was not produced in the Court. We are of the considered view that this makes the story of the recovery of the axe on the basis of the confessional statement of the appellant, Shajahan Ansari @ Bibia Ansari, very doubtful and the benefit of that must be given to the accused, and the appellant, Shajahan Ansari @ Bibia Ansari is entitled to the benefits of doubt. 24. In view of the aforementioned discussions, We find that the prosecution has failed to bring home the charge against both the appellants beyond all reasonable doubts, and the impugned Judgment of conviction and Order of sentence passed against them by the Trial Court below, cannot be sustained in the eyes of law. 25. Accordingly, the impugned Judgment of conviction and Order of sentence dated 14th May 2010, passed by the learned Sessions Judge, Lohardaga, in S.T No. 2 of 2004/S.T No.18 of 2004, are hereby, set aside. The appellant, Fatima Tirkey is acquitted of the charge. She is on bail and she is discharged from the liabilities of her bail bond. The appellant, Shajahan Ansari @ Bibia Ansari is given the benefit of doubt and he is also acquitted of the charge. This appellant is in custody. Let him be released and set at liberty forth with, unless his detention is wanted in any other case. 26. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back forthwith along-with a copy of this Judgment.