JUDGMENT : Counter-affidavit has been filed, brining on record the original certificate of the Mukhiya of the concerned Gram Panchayat, certifying that the Appellant No. 1 Surja Paharia, son of Dharma Paharia, Appellant No. 2 Jalia Paharia, and Appellant No. 4, Baidya Paharia, have died during the pendency of this appeal. As such, this appeal abates so far as the aforesaid appellants are concerned and it survives only with respect to Appellant No. 3, Surja Paharia, son of late Jogia Paharia. 2. Heard learned amicus curiae and learned counsel for the appellant and learned counsel for the State. 3. The surviving appellant is aggrieved by the Judgment of conviction dated 31.07.1992 and Order of sentence dated 01.08.1992, passed by the learned Additional Sessions Judge, Pakur, in S.C. No. 510 of 1990, whereby the surviving appellant and the other co-accused, who have died during the pendency of this appeal, were found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, they were sentenced to undergo R.I. for life for the said offence. 4. The F.I.R. was lodged on the basis of statement of the informant, Male Paharia (PW-4), wherein, he has stated that on 21.07.1990, which was a Saturday, at about 9:00 A.M. he was taking liquor and other accused persons were also taking liquor. In the meantime, there was an altercation between the deceased, Makari Paharia and the other accused persons on a trifling matter, whereupon, all the named accused persons assaulted the deceased causing his death. So far as the surviving appellant is concerned, there is allegation against him to have assaulted the deceased by lathi. It may be stated at this stage that in the entire F.I.R., there is no allegation that the deceased was strangulated to death by tying knot in his neck. It is also stated in the F.I.R. that two ladies had also witnessed the occurrence. 5. On the basis of the F.I.R., Littipara P.S. Case No. 35 of 1990 corresponding to G.R. No. 425 of 1990, was instituted and investigation was taken up. After investigation, the Police submitted charge-sheet against the accused persons. It is also stated in the F.I.R. that two ladies had also witnessed the occurrence. 5. On the basis of the F.I.R., Littipara P.S. Case No. 35 of 1990 corresponding to G.R. No. 425 of 1990, was instituted and investigation was taken up. After investigation, the Police submitted charge-sheet against the accused persons. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offence under Section 302 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put on trial. 6. In course of trial, 11 witnesses were examined on behalf of the prosecution. I.O. has not been examined in this case by the prosecution. P.W.-1 Lakhi Muni Maraiya and P.W. 2 Mungli Maraiya, are the two ladies, about whom it is stated in the F.I.R., that they had witnessed the occurrence. Both these witnesses have turned hostile and have not supported the prosecution case. P.W. 7 Bambeda Paharia and P.W. 8 Chando Paharia, are the seizure list witnesses, who have also turned hostile in this case. 7. P.W. 4 Male Paharia, the informant in this case and P.W. 5 Badu Paharia, who also claims to be the eye witness to the occurrence, have supported the prosecution case and so far as this appellant is concerned, they have stated that this appellant had also assaulted the deceased by lathi. It may be stated that even these witnesses have not made any allegation against any accused to have strangulated the deceased to death by tying any knot in his neck. The informant, P.W. 4 has also identified his signature and the signature of one witness on the inquest report of the dead body, which were marked as Exts. 2 & 2/1. 8. P.W. 3, Dr. Jageshwar Mahato, had conducted the post-mortem examination on the dead body of the deceased and had found following ante-mortem injuries on him:- i. Scratch 1/2” X 1/2” X skin deep on the lower left eye-lid. ii. Lacerated injury on the right leg near knee. iii. Bulging of both eyes. iv. Tongue was swollen, bruised, protruding and dark, bitten by teeth. v. Knot mark on the left side of neck. vi. Fracture of corna of thyroid cartilage. This witness has clearly stated that the death was caused by strangulation by means of ligature. ii. Lacerated injury on the right leg near knee. iii. Bulging of both eyes. iv. Tongue was swollen, bruised, protruding and dark, bitten by teeth. v. Knot mark on the left side of neck. vi. Fracture of corna of thyroid cartilage. This witness has clearly stated that the death was caused by strangulation by means of ligature. He has identified the post mortem report to be in his pen and signature, which was marked Ext. 1. 9. P.W. 6 Dharma Paharia, who is the witness to the inquest report has also identified his signature on the inquest report, which was earlier marked as Ext. 2/1. P.W. 9 Surji Paharin is the mother-in-law of the deceased and P.W. 10 Dharmi Paharin, is the wife of the deceased, and these witnesses are not the eye witnesses to the occurrence, rather, they were only informed about the occurrence. P.W. 11 is a formal witness, who has proved the F.I.R., Inquest Report and the Seizure List in the case. 10. On the basis of the evidence on record, all the accused appellants were found guilty for the offence under Sections 302, 34 of the Indian Penal Code and were sentenced to undergo RI for life by the impugned Judgment and Order. 11. Learned amicus curiae and learned counsel for the appellant have submitted that the prosecution has failed to bring home the charge against the present appellant, in inasmuch as, two ladies who are said to be the eye witness to the occurrence, have turned hostile and have not at all supported the prosecution case. It is submitted that though the prosecution case is supported by the informant, P.W. 4 Male Paharia and P.W. 5 Badu Paharia, but these witnesses have stated that all the accused persons including this surviving appellant had assaulted the deceased by means of lathi and other means. None of these witnesses have stated that the deceased was strangulated to death by tying knot in his neck, whereas P.W. 3 Dr. Jageshwar Mahato, who had conducted the post-mortem examination, had found the tongue of the deceased protruded and there was knot mark on the left side of the neck. He also found fracture of thyroid cartilage, and the Doctor has also stated that the death was caused by strangulation by means of ligature. Jageshwar Mahato, who had conducted the post-mortem examination, had found the tongue of the deceased protruded and there was knot mark on the left side of the neck. He also found fracture of thyroid cartilage, and the Doctor has also stated that the death was caused by strangulation by means of ligature. Learned counsels accordingly, submitted that the entire prosecution case falls flat on the basis of the medical evidence. It is further submitted by the learned counsels that the I.O. of the case has not been examined, which caused serious prejudice to the defence. Learned counsels accordingly, submitted that it is a fit case for acquittal of the appellant. 12. Learned counsel for the State, on the other hand, opposed the prayer and has submitted that the case is fully supported by two eye witnesses, who have specifically stated that at the time of occurrence, the surviving appellant was also assaulting the deceased by lathi and those ante-mortem injuries were also found on the dead body of the deceased. Learned counsel, accordingly, submitted that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubts, and there is no illegality in the impugned Judgment and Order. 13. Having heard learned counsels for both the sides and upon going through the record, we find that though in the FIR it is the specific case that all the accused persons had assaulted the deceased by lathi and other means, but there is no allegation against any accused to cause the death by strangulating the deceased by tying knot in his neck. P.W. 3, Dr. Jageshwar Mahato, has clearly stated that the death of the deceased was caused due to strangulation by means of ligature, and the post-mortem report also shows that there was clear mark of strangulation on the deceased, and as such, the ocular evidence of the witnesses are not at all corroborated by the medical evidence. This apart, two ladies, who are said to be the eye witnesses, have not supported the case at all and have turned hostile. The F.I.R. also shows that the F.I.R. was instituted on 22.07.1990, i.e., a Sunday, but the same was sent to Court on 24.07.1990, and this delay is unexplained. The Investigating Officer has not been examined in this case and we are of the considered view that this has caused serious prejudice to the defence. 14. The F.I.R. also shows that the F.I.R. was instituted on 22.07.1990, i.e., a Sunday, but the same was sent to Court on 24.07.1990, and this delay is unexplained. The Investigating Officer has not been examined in this case and we are of the considered view that this has caused serious prejudice to the defence. 14. For the forgoing reasons, we find and hold that the prosecution has not been able to bring home the charge against the appellant and this is a fit case, in which the appellant ought to have been acquitted. 15. Accordingly, the impugned Judgment of conviction dated 31.07.1992 and Order of sentence dated 01.08.1992, passed by the learned Additional Sessions Judge, Pakur, in S.C. No. 510 of 1990, are hereby, set aside. The appellant No. 3, Surja Paharia, son of late Jogia Paharia, is acquitted of the charge. The appellant is on bail and he is discharged from the liabilities of his bail bond. 16. This appeal is accordingly, allowed. Let the Lower Court Records be sent back forthwith to the Court concerned along with a copy of this Judgment. 17. Before parting with this case, we must record that we got able assistance from the learned amicus curiae, Ms. Priya Shresth, and she shall be entitled for her admissible fees from the JHALSA, Ranchi. Let a copy of this Judgment be sent to the Member Secretary, JHALSA, Ranchi, for the needful.