JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 10.9.2004 passed by the Sessions Judge, Dumka in Sessions Case No.45 of 2004 whereby the appellant having been sentenced to undergo imprisonment for life besides a fine of Rs.1000/-and in default thereof, to further undergo rigorous imprisonment for one year. 2. The case of the prosecution, in brief, is that on 20.10.2003 at 10 a.m., the informant along with her daughter Rakhi Kumari had gone to collect wood outside the house. It is alleged that at 11.30 a.m. when the informant returned to her house and entered into courtyard, she heard hulla of Aagori Devi, mother-in-law of the informant, and thereafter the informant along with her daughter proceeded towards the direction from where the hulla was coming. It is further alleged that the informant went to the room of her mother-in-law and saw that brother-in-law, Bhagwat Mandal (son of the deceased) was assaulting Aagori Devi (deceased) by “Dao” and that the deceased fell down. Thereafter the informant and his daughter started shouting and also asked Bhagwat Mandal, whereupon the accused replied that he has killed his mother, Aagori Devi. It is further alleged that on hearing hulla of the informant, villagers assembled there and the accused fled away towards north direction of Arhar field along with ‘Dao’. It is alleged that the informant noticed that her mother-in-law had died and she had received injury on her neck, left ear and on the head from where blood was oozing out. It is further alleged that Bhagwat Mandal used to quarrel with the deceased, as because on demand of money, the deceased showed her inability to pay the same. 3. Thereupon the Sub-Inspector of police, Devendra Prasad Singh (P.W.12) recorded the fardbeyan (Ext.5) of the informant. On the basis of the said Fardbeyan (Ext.5), a formal FIR (Ext.6) was drawn and a case was registered under Section 302 of the Indian Penal Code against the accused person. Devendra Prasad Singh (P.W.12) himself took up the investigation, during which, he held inquest on the dead body of the deceased Aagori Devi and prepared an Inquest Report (Ext.1). Thereafter the dead body was sent for post mortem examination which was conducted by Dr. Vinoy Sharan (P.W.11), who on holding autopsy on the dead body did find following injuries. Devendra Prasad Singh (P.W.12) himself took up the investigation, during which, he held inquest on the dead body of the deceased Aagori Devi and prepared an Inquest Report (Ext.1). Thereafter the dead body was sent for post mortem examination which was conducted by Dr. Vinoy Sharan (P.W.11), who on holding autopsy on the dead body did find following injuries. (i) Incised wound 4” x 2- ½ “ x 2” cutting all deep structure of neck over left side of neck. (ii) Incised wound 1 ½ “ x ¼ “ bone deep. (iii) Incised wound 1” x ¼ “ x bone deep (iv) Incised wound 1- ½ “ x ¼ “ bone deep (v) Incised wound 2- ½ “ x ¼ “ cutting underline bone. (vi) Incised wound 2” x ¼” bone deep. (vii) Incised wound 2” x ¼ “ x bone deep (viii) Incised wound 1 ½ “ x ¼ “ muscle deep. (ix) Incised wound 3” x ½ “ x 1-½ “ cutting all structures of left eye. (x) Incised wound 1” x ¼ “ bone deep below right eye. (xi) Fracture of left side of mandible near angle. (xii) Fracture of (iv), (v) and (vi) ribs on both sides near external junction. On dissection pericardial cavity full of blood. Right and left lung lacerated. 4. Doctor issued post mortem examination report (Ext.4) with an opinion that death was caused due to shock and haemorrhage as a result of injury no.(xii). 5. The death was caused by hard and blunt substance and also by sharp cutting weapon which was found to be grievous. 6. In the meantime, Investigating Officer made inspection of the place of occurrence and seized earth smeared with blood under seizure list (Ext.8). He also recorded the statements of the witnesses. 7. On completion of investigation, charge sheet was submitted, cognizance of the offence was taken against the appellant, who was put on trial upon the case being committed to the Court of Sessions. 8. The defence version is complete denial of the charges levelled against him. 9. In order to prove the charges against the accused, the prosecution examined as many as 12 witnesses including the Doctor (P.W.11), who conducted autopsy over the dead body of the deceased. The defence has also examined five witnesses. 8. The defence version is complete denial of the charges levelled against him. 9. In order to prove the charges against the accused, the prosecution examined as many as 12 witnesses including the Doctor (P.W.11), who conducted autopsy over the dead body of the deceased. The defence has also examined five witnesses. The trial court after going through the materials on record and also considering the evidence of the witnesses has convicted the present appellant for the offence under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/-, in default thereof, to further undergo rigorous imprisonment for one year. 10. P.W.1, Karu Mondan, had put signature on the Inquest Report, who in his examination-in-chief has stated that he is a shopkeeper and when he returned at 1.30 p.m. to his house, he head that Bhagwat Mandal has murdered his mother. P.W.2, Bhudeo Mondal is a hearsay witness. He said that when he returned to his house, he heard Bhagwat Mandal has murdered his mother. P.W.3, Vinod Mondal, who in his examination-in-chief has stated that he heard from the co-villagers at Dumka that his mother was murdered and in his presence police seized blood stained soil and prepared seizure list. P.W.4, Gopal Mondal has been tendered by the prosecution. P.W.5, Rakhi Kumari, daughter of the informant and P.W.6, Bijali Devi, who is the informant, both eye witnesses were declared hostile. P.W.7, Parmeshwar Mondal, P.W.8, Vinod Yadav, P.W.9, Haradhan Mondal, P.W.10 Lakhpai Mondal, all are declared hostile by the prosecution. P.W.11 Dr. Vinay Sharam, who held the post mortem examination of the deceased and P.W.12 Devendra Prasad Singh is the Investigating Officer in this case. 11. On hearing hulla, of Aagori Devi, (mother-in-law of the informant), the informant along with her daughter, Rakhi Kumari (P.W.5) proceeded towards the direction from where the hulla was coming and then the informant went to the room of her mother-in-law and saw that brother-in-law, Bhagwat Mandal (son of the deceased) was assaulting Aagori Devi (deceased) by “Dao” and that the deceased fell down. Thereafter the informant and his daughter, Rakhi Kumari started shouting and also asked Bhagwat Mandal, whereupon the accused replied that he has killed Aagori Devi. On hulla of the informant, villagers assembled there and the accused fled away in north direction of Arhar field along with ‘Dao’. 12. Thereafter the informant and his daughter, Rakhi Kumari started shouting and also asked Bhagwat Mandal, whereupon the accused replied that he has killed Aagori Devi. On hulla of the informant, villagers assembled there and the accused fled away in north direction of Arhar field along with ‘Dao’. 12. On closure of the prosecution case, when the appellant was questioned under Section 313 of the Code of Criminal Procedure over the incriminating evidences appearing against him, he denied. 13. Thereupon the trial court by placing reliance on the testimonies of the eye witnesses found all the appellant guilty for the offence under Section 302 of the Indian Penal Code and recorded the order of conviction and sentence which is under challenge here. 14. Mr. Ajay Kumar Pathak, learned counsel appearing for the appellant submits that though the prosecution through eye witnesses (P.Ws. 5 and 6) has come forward with the case that Aabori Devi was assaulted by the appellant, who was holding ‘Dao’ in his hand but they have not uttered a single word in their examination-in-chief regarding injuries being there on the person of the deceased. Dr. Vinay Sharan (P.W.11), who had examined the deceased and had found injuries being caused by sharp cutting weapon and also by hard and blunt substance and thereby it is evidently clear that the prosecution has not come up with true state of affairs. 15. Further it was submitted that keeping in view the evidence of the Doctor, who had never stated that the injury no.(xii), which has been attributed, was sufficient to cause death and thereby the conviction of the appellant, Bhagwat Mandal under Section 302 is certainly bad. 16. As against this, learned counsel appearing for the State submits that all the witnesses including P.W.6, the informant, an eye witness and also the evidence of Doctor which finds corroboration from the medical evidence and thereby the testimonies of those witnesses cannot be discarded. 17. He further submits that the injury which was caused on the person of the deceased would be caused by ‘Daw’ (sharp cutting weapon). Therefore, there is no illegality in convicting the appellant and thereby the trial court was absolutely justified in recording the order of conviction and sentence which needs no interference. 18. 17. He further submits that the injury which was caused on the person of the deceased would be caused by ‘Daw’ (sharp cutting weapon). Therefore, there is no illegality in convicting the appellant and thereby the trial court was absolutely justified in recording the order of conviction and sentence which needs no interference. 18. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the appellant on being convicted for the offence punishable under Section 302 of the Indian Penal Code has preferred this appeal. 19. Coming to the merit of the case, we have already noted that the prosecution came with the case as has been testified by the witnesses, P.Ws.5 and 6. Though P.Ws. 5 and 6, on one hand, are the eye witnesses to the occurrence but in their cross-examination, they have denied and have turned hostile and have stated that when they returned and went to the place of occurrence, they found the dead body was lying and saw injuries on the head of the deceased. Both the eye witnesses had not stated anything about the assault on the deceased and moreover, they had not seen anybody in the house. P.W.1 is the co-villager and witness to the inquest report also proved Ext.1 and he heard the occurrence from P.W.2, a co-villager, when he returned to his house. P.W.3 is the son of the deceased also proved the seizure list (Ext.2). P.Ws 7 and 8 came to know from the villagers about the murder of the deceased. P.W.11, who conducted post mortem examination has opined that there were sharp cutting injury upon the deceased and he also proved post mortem examination report (Ext.4). P.W.12 is the Investigating Officer, who examined the witnesses and investigated the matter and ultimately submitted charge sheet under Section 302 of the Indian Penal Code. The weapon (‘Daw’) was seized and proved by the investigating Officer, vide Ext.9. 20. From scanning the entire evidence, it is crystal clear that nobody had seen the occurrence and both the witnesses, P.Ws.5 and 6 had not seen the accused fled away from the place of occurrence and the weapon, which was seized by the Investigating Officer, has not been produced before the Doctor. 21. It is further stated that the weapon was produced in the court but the same was not sent to Forensic Science Laboratory. 21. It is further stated that the weapon was produced in the court but the same was not sent to Forensic Science Laboratory. No report was obtained from the Forensic Science Laboratory with regard to blood stain smeared with earth. 22. From the above evidence, it is crystal clear that the prosecution has not been able to proved its case. Therefore, the judgment of conviction and order of sentence passed by the trial court is set aside. 23. Consequently, the appellant, who is in custody for about 13 years, is directed to be released forthwith, if not wanted in any other case. 24. Thus, this appeal is allowed.