JUDGMENT : DHIRUBHAI NARANBHAI PATEL, J. 1. This criminal appeal has been preferred by the accused-appellant, being aggrieved and feeling dis-satisfied, by the judgment of conviction and order of sentence dated 17.07.2008, passed by learned Addl. Sessions Judge, Fast Track Court No. -IV, Dhanbad, in connection with Sessions Trial No. 289 of 2005, corresponding to G.R. Case No. 792 of 2005 arising out of Baliapur P.S. Case No. 18 of 2005 whereby this appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code for life imprisonment for causing murder of Surajmani @ Surki Devi. Case of the prosecution: 2. The case of the prosecution is that on 21st March, 2005 at 11.50 a.m. the informant Babu Lal Soren (P.W-3) gave fardbeyan to police that about five years ago, his daughter Surajmani @ Surki Devi (deceased) was taken away by Rabishwar Tudu @ Ravishwar Tudu (accused) to his house for marriage and they lived there as a husband and wife, though the marriage was not solemnized according to Adiwashi custom. The informant further alleged that his daughter has no child. When there was a quarrel between Rabishwar Tudu and his daughter, his daughter Surajmani came back to his house and Rabishwar Tudu take her from there, to his house. The informant further alleged that today in the morning at about 7 a.m., mother of Rabishwar Tudu came to his house and informed that Rabishwar Tudu had murdered his wife. After hearing this, informant rushed to the place of occurrence and saw his daughter Surajmani @ Surki Devi lying dead. When informant asked about the occurrence from the neighbours, he came to know that yesterday evening, Rabishwar Tudu had drunk and in the night after eating food with his wife, he started making quarrel with his wife and then slept in the same house. In the morning Rabishwar Tudu told them that his wife is dead. Thereafter neighbours and villagers went to his house and saw Surajmani @ Surki Devi lying dead there. The informant alleged that people told him that occurrence took place last night between 10 p.m. to 4 a.m. The informant further alleged that earlier also Rabishwar Tudu had assaulted his daughter. The informant claims that Rabishwar Tudu has killed his daughter. Ten witness were examined by the prosecution PW-1 Sona Ram Baski He is the Hearsay witness. The informant alleged that people told him that occurrence took place last night between 10 p.m. to 4 a.m. The informant further alleged that earlier also Rabishwar Tudu had assaulted his daughter. The informant claims that Rabishwar Tudu has killed his daughter. Ten witness were examined by the prosecution PW-1 Sona Ram Baski He is the Hearsay witness. He has proved his signature in the Inquest report i.e marked as Ex.1 PW-2 Dso Baski He is the Hearsay witness. He has proved his signature in the Inquest report i.e marked as Ex.1/1 PW-3 Babu Lal Soren He is the Informant of this case and is father of Surajmani @ Surki Devi (deceased). He is the Hearsay witness. He has proved his signature in the fardbeyan i.e marked as Ext.2 PW-4 Bijay Baski Formal witness PW-5 Manoj Lal Baski He is the Hearsay witness. PW-6 Azad Tadu He is the brother of Rabishwar Tadu (accused). He has proved his signature in the arrest memo i.e marked as Ex.3 PW-7 Saku Tadu He is the brother of Rabishwar Tadu (accused). He is the Hearsay witness. PW-8 Budhu Tadu Declared Hostile witness PW-9 Dr. Shailendrs kumar He is the Doctor who has conducted the post-mortem of the dead bady of Surajmani @ Surki Devi and has proved the Post-mortem report i.e marked as Ext.4 PW-10 Devendra Kumar Mishra (I.O) He is Investigation Officer of this case. He has proved the fardbeyan i.e marked as Ext.5 and also proved his signature in the FIR i.e marked as Ext.5/1. He has proved the Inquest report i.e marked as Ext.6. and has also proved the challan of dead body ie. marked as Ext.7. He has proved the Formal Fir i.e marked as Ext.8. He has proved the signature of Gopin Soren in the fardbeyan i.e marked as Ext.2/1. Argument canvassed by the counsel for the appellant: 3. Learned counsel appearing for the appellant has submitted that the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. It is further submitted by the counsel for the appellant that there is no eye witness of the occurrence at all. Whosoever what has narrated, the occurrence has been narrated as a hearsay witness and on the basis of the presumption the whole narration has been given. It is further submitted by the counsel for the appellant that there is no eye witness of the occurrence at all. Whosoever what has narrated, the occurrence has been narrated as a hearsay witness and on the basis of the presumption the whole narration has been given. It is also submitted by the counsel for the appellant that as per the case of the prosecution in F.I.R. which is lodged by father of the deceased-Babulal Soren (PW-3) has informed the police that the mother of this appellant-accused came to him and she conveyed him that her son has committed murder of the daughter of the informant. Therefore, the informant (PW-3) rushed at the place of occurrence where he saw the dead body of his daughter. The F.I.R. was lodged and the investigation was started but police has not recorded the statement of mother of the appellant nor she has been examined as a prosecution witness. Thus, the most important witness has not been examined at all by the prosecution. Similarly, nearby the place of occurrence several other persons are also residing but not a single statement has been recorded of the witness who is an independent like Sadhan Mandal, Dharnidhar Mahato and Mohan Mandal etc., as per paragraph 18 onwards of the deposition of the Investigating Officer. It is also submitted by the counsel for the appellant that Dharnidhar Mahto (Chowkidar) of the village who had also gone with the mother of the appellant to inform the informant (PW-3) but the prosecution has never recorded the statement of mother of the appellant nor the statement of Chowkidar-Dharnidhar Mahto. The only witness is father of the deceased and the Investigating Officer, others are hearsay witnesses and hostile witnesses. The prosecution has, therefore, failed to prove the offence of murder committed by this appellant. This aspect of the matter has not been properly appreciated by the learned trial court and hence, the judgment and order of conviction and sentence passed by the trial court in Sessions Trial No. 289 of 2005 deserves to be quashed and set aside. Argument canvassed by the A.P.P.; 4. We have heard learned counsel appearing on behalf of State-A.P.P. who has submitted that the prosecution has proved the offence of murder of deceased committed by this appellant beyond reasonable doubt. There are no major omissions and contradictions in the deposition of the prosecution witnesses. Argument canvassed by the A.P.P.; 4. We have heard learned counsel appearing on behalf of State-A.P.P. who has submitted that the prosecution has proved the offence of murder of deceased committed by this appellant beyond reasonable doubt. There are no major omissions and contradictions in the deposition of the prosecution witnesses. This aspect of the matter has been properly appreciated by the learned trial Court while convicting and sentencing this appellant for causing murder of the deceased. In the house there was only deceased Surajmani @ Surki Devi and this appellant. The whole occurrence has taken place on 21st March, 2005 during night hours. Moreover, the Investigating Officer has also found the dead body in the house of this appellant and the appellant-accused has been arrested when he was hiding himself from arrest. These aspects of the matter have been properly appreciated by the learned trial court and hence, this appeal may not be allowed by this Court. Reasons: 5. Having heard the learned counsel for both the sides and looking to the evidences on record, we hereby, quash and set aside the order of conviction and sentence passed by the Addl. Sessions Judge, Fast Track Court No. -IV, Dhanbad, in connection with Sessions Trial No. 289 of 2005 dated 17th July, 2008, on the following evidences on record: (a) It is a case of the prosecution that on 21st March, 2005 at 11.50 a.m. informant Babulal Soren (PW-3) informed the police that about five years ago his daughter Surajmani @ Surki Devi (deceased) was taken away by this appellant and both were staying together though they were not husband and wife. They were staying together for more than one dozen years. Marriage was not solemnized as per custom of Adivasi. It is also alleged in the F.I.R. that on 21st March, 2005 mother of this appellant came at his house and informed him that her son-Rabishwar Tudu @ Ravishwar Tudu (accused) has committed murder of daughter of the informant. The informant rushed at the house of Rabishwar Tudu @ Ravishwar Tudu where he saw the dead body of his daughter. It is alleged that the accused was consuming alcohol and was also causing physical violence upon the deceased frequently and as there was no child out of this relationship between the accused and the deceased this appellant-accused has committed murder of his daughter. It is alleged that the accused was consuming alcohol and was also causing physical violence upon the deceased frequently and as there was no child out of this relationship between the accused and the deceased this appellant-accused has committed murder of his daughter. Criminal F.I.R. was lodged and criminal law was put on motion, investigation was started and the Investigating Officer-PW-10 has recorded several statements of the witnesses and charge-sheet was filed and the case was committed to sessions trial being Sessions Trial No. 289 of 2005 and on the basis of the evidence of PWs-1 to 10 and also on the basis of the documentary evidences like F.I.R., inquest report and the post mortem report, the learned trial court has convicted this appellant for causing murder of the deceased for life imprisonment. (b) Looking to the evidences of PWs-1 and 2 they are hearsay witnesses and they have been examined to prove the inquest report and their signature is proved and the inquest report is at Exhibit-1. (c) PW-3 is the informant who is father of the deceased. Looking to the deposition of PW-3 it appears that he is not an eye witness at all. Moreover, he has stated that the mother of the appellant-accused came at his residence on 21st March, 2005 and informed him that her son has committed murder of daughter of the informant. This witness has also stated that when he rushed at the house of this accused, appellant-accused has confessed the offence of murder committed by him but this aspect of the matter has not been narrated at all in the F.I.R. This is a major contradiction. Such a vital aspect has not been stated in the F.I.R. Thus, there is a material improvement of the case by PW-3. Moreover, this witness has stated before the learned trial court that not only the mother of the appellant had come to his house but Chowkidar of the village had also accompanied the mother of the appellant-accused but this aspect of the matter has also not been stated in the F.I.R. These facts have been narrated in para 17 of his deposition. Looking to para-18 onwards of the deposition of the Investigating Officer (PW-10) the said person appears to be Dharnidhar Mahto-Chowkidar, prosecution has neither recorded statement of the mother of the appellant-accused nor of Dharnidhar Mahto who is Chowkidar nor they have been examined as prosecution witness. Thus, the most important witnesses have been kept away from the present case by the prosecution for the reasons best known to the Investigating Officer. This is fatal to the prosecution. (d) Hon'ble Apex Court in the case of Miran Bux v. Laloo reported in 1993 Supp (3) SCC 379 has held as under:- "4. Apart from these infirmities, there is one other major drawback in this case. Manzoor Ahmed who gave the FIR putting forward this story has not been examined on the ground that his presence could not be secured as he was abroad. It must be noted that the version given by him in his report is being repeated by all the eyewitnesses. In a case of this nature unless the version given in the FIR, is found to be reliable, the same version repeated by these eyewitnesses cannot be accepted outrightly. At any rate in this case, it is difficult to accept the evidence of the other witnesses who are all relatives and whose version suffers from many infirmities, unless the court is satisfied that the version given in the FIR is true. The High Court has considered in great detail under what circumstances the report was given by Manzoor Ahmed." (emphasis supplied) (e) Hon'ble Apex Court in the case of State of H.P. v. Gian Chand reported in (2001) 6 SCC 71 has held as under:- "14. So far as non-examination of other witnesses and an adverse inference drawn by the High Court therefrom is concerned, here again we find ourselves not persuaded to subscribe to the view taken by the High Court. The prosecutrix, PW 7 has stated that soon before the incident she was playing with three girl-children of the same age as hers and they were present when the accused committed rape on her. One of the girls picked up a broom and had tried to scare away the accused by striking the broom on him. This little friend of the victim had also raised a hue and cry but none from the neighbourhood came to the spot. One of the girls picked up a broom and had tried to scare away the accused by striking the broom on him. This little friend of the victim had also raised a hue and cry but none from the neighbourhood came to the spot. These girls were none else than daughters of her uncle. What the High Court has failed to see is that these girls were of tender age and could hardly be expected to describe the act of forcible sexual intercourse committed by the accused on PW 7. Secondly, these girls would obviously be under the influence of their parents. We have already noted the co-sister of PW 1 turning hostile and not supporting the prosecution version. How could these little girls be expected to be away from the influence of their parents and depose freely and truthfully in the court? Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence, which though available has been withheld from the court, then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. if the same is found to be natural, trustworthy and worth being relied on. "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations...." In the present case we are clearly of the opinion that in view of the accused being a relation of the in-laws of the mother of the prosecutrix and the other young girls who are alleged to have been not examined being from the family of such in-laws, it is futile to expect that such girls would have been allowed by their parents to be examined as witnesses, and if allowed, could have freely deposed in the court. The question of drawing an adverse inference against the prosecution for such non-examination does not arise." (emphasis supplied) (f) Hon'ble Apex Court in the case of Joginder Singh v. State of Haryana reported in (2014) 11 SCC 335 has held as under:- "40. In the case at hand, non-examination of the material witnesses is of significance. It is so because PW 11 is really an interested witness though the High Court has not agreed with the same. It appears from the material brought on record that he had an axe to grind against the appellant. That apart, Chander, who was present from the beginning, would have been in a position to disclose more clearly about the genesis of the occurrence. He is the husband of the deceased and we find no reason why the prosecution had withheld the said witness. Similarly, the other three witnesses who are said to be injured witnesses when available should have come and deposed. He is the husband of the deceased and we find no reason why the prosecution had withheld the said witness. Similarly, the other three witnesses who are said to be injured witnesses when available should have come and deposed. Therefore, in the obtaining factual matrix that their non-examination gains significance." (emphasis supplied) (g) Looking to the deposition given by PW-4 who is a formal witness, PW-5 a hearsay witness, PW-6 has been examined to prove his signature upon arrest memo of this appellant which is marked as Exhibit-3, PW-7 has been examined who is brother of the accused and he is a hearsay witness and PW-8 is hostile witness neither of these witnesses has proved the factum of the murder committed by this appellant of the deceased much less beyond reasonable doubt. (h) Looking to the deposition given by PW-10-Devendra Kumar Mishra who is the Investigating Officer, he has stated that in the nearby house of this appellant there were house of other persons like Sadhan Mandal etc. but their statement has not been recorded at all nor they have been examined as a prosecution witness. The Investigating Officer has also stated in his cross-examination that Dharnidhar Mahto who is Chowkidar of the village was aware about the occurrence but neither his statement was recorded nor he was examined as a prosecution witness. Similarly, Mohan Mandal who was also staying nearby the house of this appellant-accused but his statement has also not been recorded nor he has been examined as prosecution witness. The only person examined is PW-3 who is father of PW-6 who is brother of the appellant-accused and PW-7 is also brother of the accused. It ought to be kept in mind that two brothers of the accused will never support the prosecution case at all. The Investigating Officer ought to have examined the independent witnesses. Though they were available, but, the independent witnesses statement has not been recorded at all by the Investigating Officer. The informant was informed by the mother of the appellant, but, neither her statement has been recorded nor she has been examined. Thus, not a single witness bring at home, the case of the prosecution. Nobody has proved, anything in whole case. Thus the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. 6. Thus, not a single witness bring at home, the case of the prosecution. Nobody has proved, anything in whole case. Thus the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. 6. As a cumulative effect of the evidences on record, as discussed above, the prosecution has failed to prove the offence of murder committed by this appellant. This criminal appeal is allowed and disposed of and the impugned judgment of conviction and order of sentence dated 17th July, 2008, passed by learned Addl. Sessions Judge, Fast Track Court No. -IV, Dhanbad, in connection with Sessions Trial No. 289 of 2005, corresponding to G.R. Case No. 792 of 2005 arising out of Baliapur P.S. Case No. 18 of 2005 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Since the appellant, namely, Rabishwar Tudu @ Ravishwar Tudu is in judicial custody, he is directed to be released forthwith, if not required in any other case.