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2017 DIGILAW 1704 (JHR)

Upendra Ram v. State of Jharkhand

2017-09-23

DHIRUBHAI NARANBHAI PATEL, RATNAKER BHENGRA

body2017
ORDER : Dhirubhai Naranbhai Patel, J. 1. This criminal appeal has been preferred by the accused-appellants being aggrieved and feeling dissatisfied by the judgment and order of conviction and sentence dated 4.5.2007 and 5.5.2007 respectively, passed by the Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 51 of 2006, whereby, these appellants have been convicted for the offence of murder of Brahamdeo Ram and have been sentenced for life imprisonment. Case of the Prosecution:-- Case of the prosecution is that on 12.12.2004 at 11 A.M., the informant Ram Sunder Ram (P.W. 2) gave fardbeyan to police that his brother Brahamdeo Ram (deceased) had a Grocery Shop at home and he also display his shop at Nawa Bazar. Yesterday on 11.12.2004 at 5.30 P.M. his brother was coming to his home in bicycle from Nawa Bazar. At about 6 P.M. when he reached near a Mahuwa tree, located at Purnadih then Upendra Ram (accused) and Satyendra Ram (accused) who were hiding nearby assaulted him in back portion of his head by means of GARANSA causing fracture in the back side of the skull and brain parts come out. He fell down and died instantaneously. The informant further alleged that earlier there was an altercation and scuffle between the wives of deceased and accused persons for irrigating the field from the well, in which wife of deceased namely Urmila Devi sustained head injury. No information was given to the Police or Choukidar about the aforesaid occurrence. At that time, both the accused persons had threatened to kidnap and kill the informant and his brother Brahamdeo Ram (deceased). The informant further alleged that after the occurrence, one Raghunandan Ram who had seen the occurrence started raising hulla (alarm) and then informant who was there for nature call, rushed to the place of occurrence and saw both the accused persons holding GARANSA fleeing away towards the eastern side of Village-Pumadih. When informant reached the place of occurrence, he found his brother lying dead in the ground, having serious head injuries and spillage of brain had come out from the back side of his head and his brother bicycle and Grocery items and bloodstained red colour towel of accused Satyendra Ram was lying there. The informant further claims that due to earlier altercation and scuffle, the accused persons Upendra Ram and Satyendra Ram had killed his brother Brahmdeo Ram (deceased). The informant further claims that due to earlier altercation and scuffle, the accused persons Upendra Ram and Satyendra Ram had killed his brother Brahmdeo Ram (deceased). Eight witnesses were examined by the prosecution: P.W-1 Urmila Devi She is the wife of Brahamdeo Ram (deceased) and is Eye witness of the occurrence. P.W-2 Ram Sunder Ram He is the brother of Brahamdeo Ram (deceased) and is informant of this case. He claims to be Eye witness of the occurrence. P.W-3 Rekha Devi She is the niece of Brahamdeo Ram (deceased) and is Hearsay witness. P.W-4 Raghunandan Ram Declared Hostile witness. P.W-5 Mohan Prasad Declared Hostile witness. P.W-6 Lallu Ram Declared Hostile witness. He had proved his signature in the seizure list i.e. marked as Ext. 1 but has denied that any article was seized in his presence. P.W-7 Dr. Abhay Kumar He is the Doctor who has conducted the Post-mortem of the dead body of Brahamedo Ram and has proved the Post-mortem report i.e marked as Ext. 2 P.W-8 Satyam Kumar (I.O) He is the Investigating officer of this case. He has proved the fardbeyan and formal FIR i.e marked as Ext. 3 and 4 respectively and has also proved the seizure list i.e marked as Ext. 5 Arguments canvassed by the counsel for Appellants (Accused): 2. It is submitted by the senior counsel appearing for the appellants that prosecution has failed to prove the offence alleged against these appellants beyond reasonable doubt. Moreover, there are major contradiction and omission in the deposition of the prosecution witnesses. It is further submitted by the senior counsel appearing for the appellants that Urmila Devi (PW-1) is not an eyewitness at all because it has been stated by Investigating Officer PW-8, in his deposition, that PW-1 in her statement, under Section 161 of the Code of Criminal Procedure, before the police, has never stated that she has seen the occurrence. Thus, during course of her examination, there is material improvement in her statement. This is a major contradiction as per proviso to Section 162 of the Code of Criminal Procedure. It is also submitted by the counsel for the appellants that Raghunandan Ram (PW-4), another eyewitness, has turned hostile. It is also submitted by the counsel for the appellants that Mohan Prasad (PW-5) and Lallu Ram (PW-6) are also hostile witnesses. This is a major contradiction as per proviso to Section 162 of the Code of Criminal Procedure. It is also submitted by the counsel for the appellants that Raghunandan Ram (PW-4), another eyewitness, has turned hostile. It is also submitted by the counsel for the appellants that Mohan Prasad (PW-5) and Lallu Ram (PW-6) are also hostile witnesses. Thus, only left out eyewitness is Ram Sunder Ram (PW-2) because Rekha Devi (PW-3) is also hearsay witness. It is further submitted by the counsel for the appellants that PW-2 is not a trustworthy and reliable witness mainly for the reason that looking to his cross-examination, he has stated that he had rushed at the place of occurrence by hearing alarm raised by PW-4, but, this PW-4 has turned hostile. Thus, this fact has not been proved at all. Counsel appearing for the appellants has further submitted that looking to the cross-examination in para-3 of PW-2, it appears that this witness has stated that he has seen the accused running away from the place, but, he has not seen that these appellants have caused injuries upon the body of the deceased. Thus, PW-2 is not an eyewitness at all of the incident. Moreover, it has been stated by PW-2 in para-3 of his cross-examination that his brother Brahamdeo Ram told him that these appellants beat him, but, this fact has not been stated in the FIR. Thus, there is material improvement of the oral dying declaration given by the deceased before PW-2. Such a vital fact is missing in the FIR. It is also submitted by the counsel for the appellants that so-called murder has taken place on a road nearby Village-Purnadih. Nobody had stated that dead body was brought at home or not. Murder has taken place during evening hours of 11.12.2004. Police came at the place of occurrence on 12.12.2004 at about 1:30 p.m. and the dead body of the deceased was still on the road. This is normally not possible because Ram Sunder Ram (PW-2), who is brother of the deceased, cannot leave the dead body on the road and has gone at his residence. Whole story is concocted by the prosecution. It is also submitted by the counsel for the appellants that PW-2 has seen the sharp-cutting instrument, in the hands of these appellants, which is garansa. Looking to the medical evidence given by Dr. Whole story is concocted by the prosecution. It is also submitted by the counsel for the appellants that PW-2 has seen the sharp-cutting instrument, in the hands of these appellants, which is garansa. Looking to the medical evidence given by Dr. Abhay Kumar (PW-7), who has carried out post mortem upon the body of the deceased, it appears that this witness has stated in his deposition that injuries sustained upon the body of the deceased are capable of being caused by hard and blunt substance and not by garansa. Thus, there is major discrepancy between the ocular evidence and medical evidence. Counsel appearing for the appellants has further submitted that looking to this major contradiction in the ocular and medical evidence, it appears that PW-2 is a highly interested witness. In para-3 of his deposition, he has stated that he has seen the accused running away from the place of occurrence; meaning thereby, PW-2 has not seen the accused causing injuries upon the body of the deceased. In such situation, PW-2 is untrustworthy and unreliable. This aspect of the matter has not been properly appreciated by the learned trial court and hence, judgment and order of conviction and sentence dated 4.5.2007 and 5.5.2007 respectively, passed by the Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 51 of 2006 deserves to be quashed and set aside. Arguments canvassed by A.P.P. 3. Counsel appearing for the State, has submitted that prosecution has proved the offence beyond reasonable doubt. There is no delay in lodging of the FIR. Accused persons are named in the FIR. PW-1 and PW-2 are eyewitnesses. They have seen the appellants causing murder of the deceased by weapon-garansa. They have reached at the place of occurrence on hearing alarm of PW-4. These aspects of the matter have been properly appreciated by the learned trial court. It is submitted by the counsel for the State that the medical evidence is corroborative to the depositions of eyewitnesses PW-1 and PW-2. There are several injuries upon the body of the deceased, as narrated by PW-7. These aspects of the matter have been properly appreciated by the learned trial court. It is submitted by the counsel for the State that the medical evidence is corroborative to the depositions of eyewitnesses PW-1 and PW-2. There are several injuries upon the body of the deceased, as narrated by PW-7. Counsel appearing for the State has relied upon the decision of the Hon'ble Supreme Court in the case of "Shamsher Singh alias Shera vs. State of Haryana", reported in (2002) 7 SCC 536 : AIR 2002 SC 3480 and submitted that, on the basis of aforesaid decision, even if there is slight discrepancy in the evidences of prosecution witnesses, the same can be ignored by the trial court and, therefore, judgment and order of conviction and sentence dated 4.5.2007 and 5.5.2007 respectively, passed by the Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 51 of 2006 may not be quashed and set aside by this Court. REASONS 4. Having heard counsel for both the sides and looking to the facts and circumstances of the case, we. Hereby, quash and set aside the judgment and order of conviction and sentence dated 4.5.2007 and 5.5.2007 respectively, passed by the Sessions Judge. Palamau. Daltonganj in Sessions Trial No. 51 of 2006 mainly for the following reasons: (i) Occurrence has taken place on 11.12.2004 at about 18:00 hours. Statement of the informant was recorded on 12.12.2004 at about 11:00 a.m. FIR was lodged on 12.12.2004 at about 13:15 hours. Case of the prosecution is that on 11.12.2004 the informant (PW-2) reached at the place of occurrence upon hearing alarm raised by PW-4 and he saw these appellants causing injuries by 'garansa' upon the deceased and the deceased is brother of this informant. Deceased expired on the spot. The occurrence has taken place on road leading towards Village-Purnadih. His brother (PW-2) was returning from his grocery shop on bicycle. On the basis of the information, FIR was lodged; investigation was carried out; statement of every witness was recorded; charge-sheet was filed and the case was committed to the sessions court being Sessions Trial No. 51 of 2006 and on the basis of the evidence of PW-1 to PW-8, learned trial court vide judgment and order of conviction and sentence dated 4.5.2007 and 5.5.2007 respectively, convicted the appellants for causing murder of Brahamdeo Ram and sentenced for life imprisonment. (ii) Looking to the deposition given by PW-1, who is so-called eyewitness of the occurrence, it appears that she had never stated before the police that she has seen the occurrence. (iii) Looking to the deposition given by PW-2, who is the brother of the deceased and highly interested witness, this Court will look to this evidence with all care, caution and circumspection. We have perused the deposition given by PW-2, who in his cross-examination has stated that upon hearing the alarm of PW-4, he reached at the place of occurrence. PW-4 has turned hostile and therefore, the factum of raising alarm by PW-4 has not been proved by the prosecution. Thus, it is doubtful that how PW-2 has reached at the place of occurrence. This is not the case of the prosecution that PW-2 reached at the place of occurrence on hearing the cries of the deceased. Neither in the FIR nor in his deposition, he has stated that the deceased raised alarm and he reached. It is the case of the prosecution that so-called single eyewitness, who is highly interested witness, has heard alarm of PW-4 and he reached at the place of occurrence, which is far away from the village and as PW-4 has turned hostile, it is very doubtful that PW-2 has reached at the place of occurrence. Thus, his presence at the place of occurrence is doubtful. Looking to the deposition given by PW-2 and also looking to his cross-examination, it appears that he has not seen the occurrence. In para-3 of the deposition of PW-2, he has narrated that he has seen these appellants running away from the place of occurrence. Thus, PW-2 has never stated in para-3 of his deposition that he has seen these appellants causing injuries by 'garansa' to his deceased brother. Thus, PW-2 is not an eyewitness of the occurrence at all. PW-2 is untrustworthy and unreliable witness. PW-2 has narrated, in his examination-in-chief, that he has seen the accused-appellants causing injuries to the deceased by weapon 'garansa'. As stated hereinabove, there is doubtful presence of this witness at the place of occurrence. (iv) Looking to the medical evidence given by Dr. Abhay Kumar (PW-7), who has carried out post mortem upon the body of the deceased, has stated that injuries were capable of being caused by hard and blunt substance. As stated hereinabove, there is doubtful presence of this witness at the place of occurrence. (iv) Looking to the medical evidence given by Dr. Abhay Kumar (PW-7), who has carried out post mortem upon the body of the deceased, has stated that injuries were capable of being caused by hard and blunt substance. Medical evidence given by PW-7 has stated that by garansa', these injuries cannot be caused. Thus, PW-2, who has narrated the fact that injuries caused by weapon 'garansa' were also not proved. Medical evidence is contradictory. For these reasons, PW-2 is untrustworthy and unreliable. These aspects of the matter have not been properly appreciated by the learned trial court. (v) It appears from the evidence given by Rekha Devi (PW-3) that she is hearsay witness and niece of the deceased. It further appears that PW-4 is a hostile witness. (vi) Looking to the evidence given by Dr. Abhay Kumar (PW-7), following were the ante mortem injuries: "Ante mortem Injuries-- I. One lacerated wound 8" x 2 1/2" x bone deep with fracture of occipital bone of skull left temporal bone with brain matter coming out and membrance were torn; II. One lacerated wound 1 1/2" x 1" x bone deep on right chick; III. Blood oozing out from right ear; On dissection of thorax both lungs are pale. 3rd chamber empty. On dissection of abdomen stomach empty. Small intestine filled with gastric zooses and gases. Large intestine is filled with gases and stool (Foeces) Bladder empty. Rigor mortis is present in all four limbs. Time since death within 6 to 36 hours. Cause of death was in my opinion, due to shock haemorrhage due to head injury caused by hard and blunt substance. The injury No. 1 was sufficient to cause death in ordinary course of nature." Looking to the aforesaid medical evidence, it appears that the injuries were never caused by 'garansa'. Whole evidence of the single eye-witness, who is brother of the deceased, that accused caused injuries by 'garansa' upon the body of the deceased, is not proved. Thus, the prosecution has failed to prove the offence of murder committed by these appellants beyond reasonable doubt. Thus, it appears that there is a major contradiction in the ocular evidence and the medical evidence. Thus, the prosecution has failed to prove the offence of murder committed by these appellants beyond reasonable doubt. Thus, it appears that there is a major contradiction in the ocular evidence and the medical evidence. It has been held by Hon'ble Supreme Court in the case of Ram Narain Singh vs. State of Punjab, reported in (1975) 4 SCC 497 as under: "14. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh vs. State this Court observed in similar circumstances as follows: "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle." It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the doctor's evidence with a view to support an incorrect case." (Emphasis supplied) It has further been held by Hon'ble Supreme Court in the case of Abdul Sayeed vs. State of M.P., reported in (2010) 10 SCC 259 as under: "39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved." (Emphasis supplied) It has further been held by Hon'ble Supreme Court in the case of Rakesh vs. State of M.P., reported in (2011) 9 SCC 698 as under: "13. It is a settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of a witness has a greater evidentiary value vis-a-vis medical evidence; when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved. (Vide State of U.P. vs. Hari Chand, Abdul Sayeed vs. State of M.P. and Bhajan Singh vs. State of Haryana.)" (Emphasis supplied) (vii) Whenever there is single eyewitness and that too a close relative of the deceased, it is the duty of the trial court to view such type of evidences with all care, caution and circumspection. It has been held by Hon'ble Supreme Court in the case of Suresh Chaudhary vs. State of Bihar, reported in (2003) 4 SCC 128 : 2003 (2) JLJR (SC) 91 as under: "8. We have perused the judgments of the two courts below as also the evidence on which the courts below have relied to base a conviction. It is an admitted fact that the sole eyewitness who has supported the case of the prosecution is PW-8 who is the brother of deceased Rajendra Chaudhary and the cousin brother of Chamru Chaudhary. We have perused the judgments of the two courts below as also the evidence on which the courts below have relied to base a conviction. It is an admitted fact that the sole eyewitness who has supported the case of the prosecution is PW-8 who is the brother of deceased Rajendra Chaudhary and the cousin brother of Chamru Chaudhary. The other person who was sleeping with the deceased on that day was PW-10 Baleshwar Chaudhary who has not supported the prosecution case, therefore, it has become incumbent on us to consider and assess the evidence of PW-8 rather cautiously to come to the conclusion whether the courts below were justified in relying on this evidence of PW-8 either with corroboration or even without the same, as observed by the High Court. 10. We also find a certain element of discrepancy in the oral evidence when we compare the same with the medical evidence which discrepancy also has not been explained by the prosecution either by getting clarification from the doctor or by any other means. The doctor in his evidence has clearly stated that the injuries suffered by the deceased persons, at least two of them i.e. Rajendra Chaudhary and Sheo Mahto may be caused by explosive substances such as a powerful bomb. There is no material collected by the prosecution indicating either the use or otherwise of the bomb in the attack. To this extent also, we do find some contradiction in the evidence produced by the investigating agency and the eyewitness evidence of PW-8 who does not speak about the use of any bomb. 13. In the instant case, as noticed by us the doubt as to the presence of PW-8 starts from the very beginning of the incident itself inasmuch as he was not injured in the incident even though he should have been the main target of attack. He did not mention the name of Suresh Chaudhary, one of the appellants, to PW-12 when he narrated the incident to him. In the complaint he states that deceased Rajendra Chaudhary was taken to a local doctor and he died at the police station but in his evidence he states that Rajendra Chaudhary died in the police station. He did not mention the name of Suresh Chaudhary, one of the appellants, to PW-12 when he narrated the incident to him. In the complaint he states that deceased Rajendra Chaudhary was taken to a local doctor and he died at the police station but in his evidence he states that Rajendra Chaudhary died in the police station. PW-12 who was none other than the son of deceased Rajendra Chaudhary contradicts PW-8 in this regard when he states that his father was taken to the hospital from the place of the incident and he died there at 5 a.m. This evidence not only casts a very serious doubt as to the presence of PW-8, it also creates a serious doubt as to the time of the incident as also the time when the FIR Ext.-P-3 was lodged. These discrepancies and contradictions in the evidence of PW-8 make his evidence not wholly believable. Therefore, it becomes necessary to search for some corroboration if at all his evidence is to be accepted. The trial court found corroboration for the evidence of PW-8 in the evidence of PWs-9, 10, 12 and 13. As noticed above, PW-10 is a witness who has not supported the prosecution. The only piece of evidence which could be stated to be in conformity with the evidence of PW-8 is the factum of they having slept in the pump house. Beyond that there is nothing else which supports the evidence of PW-8. Learned Sessions Judge has not pointed out which part of the evidence of PWs-9, 12 or 13 in fact corroborates the evidence of PW-8. The High Court also similarly states that the evidence of PWs-3, 9 and 12 corroborates the evidence of PW-8 without specifically referring to the parts of evidence of these witnesses which actually corroborates the evidence of PW-8. We have already noticed in regard to the major part of the evidence of PW-8, there is no corroboration in the evidence of PW-9, PW-10 or PW-12. At the cost of repetition, we may point out that the only part of the evidence of PW-8 which is supported by these witnesses is the fact that PW-8 told them about the incident when he came to the village after the incident. At the cost of repetition, we may point out that the only part of the evidence of PW-8 which is supported by these witnesses is the fact that PW-8 told them about the incident when he came to the village after the incident. The timing of this, in our opinion, is itself in doubt, therefore, we consider that this part of the evidence of PWs-9, 10 or 12 or for that matter of PW-13 is insufficient to corroborate the evidence of PW-8 on material facts. In regard to the other material facts as already noticed by us, PW-12 has given a totally different version which if accepted would destroy the entire prosecution case, therefore there is no question of treating the evidence of the said witness as corroborating the evidence of PW-8. It is to be noted that from the material on record, we find that the evidence of PW-13, the investigating officer is highly doubtful as to the timing of the incident. He has while registering the complaint recorded that the deceased Rajendra Chaudhary had already died and this complaint according to this witness was lodged at 1 a.m. which is directly in conflict with the evidence of PW-12 who says that Rajendra Chaudhary died at 5 a.m. in the hospital. That apart, while the complaint Ext.-P-3 was registered according to PW-13 at 1 a.m., the express report in this regard reached the Jurisdictional Magistrate only on 12.10.1992 at about 11.30 a.m. which is nearly 11/2 days after the incident in question. That apart, the sequence of events narrated by him and the inquests conducted by PW-13 as stated by him on the three dead bodies also casts considerable doubt as to the actual time at which the inquest was conducted and if we take the timing mentioned by PW-13 as to the conducting of inquest on the dead bodies, it becomes more probable that the same was done on the morning of 11.10.1992 after Rajendra Chaudhary died at about 5 O'clock. In this background, we are of the opinion that the evidence of PW-8 who is a close relative and an interested witness as also that of the investigating officer PW-13 which is full of contradictions, cannot be relied upon to base a conviction." (Emphasis supplied) It has further been held by Hon'ble Supreme Court in the case of Bhimapa Chandappa Hosamani vs. State of Karnataka, reported in (2006) 11 SCC 323 as under: "24. We have undertaken a very close and critical scrutiny of the evidence of PW-1 and the other evidence on record only with a view to assess whether the evidence of PW-1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness." (Emphasis supplied) It has further been held by Hon'ble Supreme Court in the case of Raju vs. State of T.N., reported in (2012) 12 SCC 701 as under: "24. For the time being, we are concerned with four categories of witnesses-a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required." (Emphasis supplied) (viii) Looking to the ratio decidendi propounded by the Hon'ble Supreme Court and the evidence given by PW-2, it appears that-- (a) Presence of PW-2 at the place of occurrence is highly doubtful because prosecution has failed to prove the fact that PW-2 has reached at the place of occurrence upon hearing alarm raised by PW-4 because PW-4 has turned hostile. (b) PW-2 has stated in his cross-examination that he has seen the appellants running away from the place of occurrence. Thus, he has not seen the occurrence at all of causing murder of the deceased. Moreover, PW-2 has never seen these appellants running away with weapon 'garansa'. (c) This witness is informant. He has stated that there was weapon 'garansa' in the hands of these appellants, but, in the medical evidence given by Dr. Abhay Kumar (PW-7), it has been stated that injuries were never capable being caused by sharp-cutting instrument 'garansa'. Thus, there is major contradiction in the ocular evidence and the medical evidence. (d) In view of this evidence, PW-2 is not an eyewitness at all. He is absolutely unreliable and untrustworthy witness. These aspects of the matter have not been properly appreciated by the learned trial court. 5. As a cumulative effect of the aforesaid facts, reasons, evidences on record and the judicial pronouncements, we, hereby, quash and set aside the judgment and order of conviction and sentence dated 4.5.2007 and 5.5.2007 respectively, passed by the Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 51 of 2006, as prosecution has failed to prove the offence of murder committed by these appellants. Appellants are in jail and they will be released forthwith from jail custody, if not wanted in any other cases. Accordingly, this criminal appeal is allowed and disposed of.