JUDGMENT : Rajarshi Bharadwaj, J. Nobody appears in support of the appeal, when the matter is called on. 2. Mr. Anjan Dutta, learned Advocate is requested to appear in this matter as amicus curiae and assist this court. 3. Mr. Arun Kumar Maity, learned Additional Public Prosecutor with his junior Mrs. Zareen N. Khan, Advocate appears on behalf of the state. 4. The Appeal is directed against judgment and order dated 12th March, 1993 passed by learned Sessions Judge, Howrah in Sessions Trial Case No. IX (10) of 1992 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for one year more. The fine amount, if realised, shall be paid to the victim. 5. The prosecution case, as alleged against the appellant is as follows:— In the night of 20th August, 1991 one Somnath Dutta, S.I of Police attached to Bally Police Station had been investigating an accident case at Bally Bridge. There at about 22.35 hours he received a wireless message from Bally Police Station from Eastern Railway Hospital at Liluah to the effect that a dead body of an unidentified person aged about 25/35 years with multiple stab injuries had been brought there. Immediately, thereafter Sri. Dutta rushed to the Hospital. There he contacted the Medical Officer on duty who was a lady. She along with another took him to Hospital Dead House and identified the body to the police officer who held inquest on the body and prepared a report in which he indicated number of injuries as found on the person of the deceased. From there the police officer went to the place of occurrence which was near the Town Supply and where the body had been found lying. Shri. Kingshuk Kumar Bose and Sri. Kajal Bhadra took the police officer to the place of occurrence. From there the police officer seized blood-stained grass, earth and control earth. In course of investigation he examined different witnesses. It transpired that the name of the deceased was Shankar Chetri. Shankar had married the sister of one Sohan. 6. There was discord over the marriage. Kajal Bhadra took the police officer to the place of occurrence. From there the police officer seized blood-stained grass, earth and control earth. In course of investigation he examined different witnesses. It transpired that the name of the deceased was Shankar Chetri. Shankar had married the sister of one Sohan. 6. There was discord over the marriage. On the fateful night while Shankar had been going on a cycle rickshaw, accused Sohan stopped the cycle rickshaw and forced Shankar to get down and asked him to sign on a paper for releasing his sister. When the latter declined Sohan brought out a knife from his clothes and stabbed Shankar repeatedly. As a consequence Shankar succumbed to the injuries. The said Kingshuk Bose and Kajal Bhadra while going along the road found the body lying. They carried the body to the hospital where the Medical Officer declared the person dead. Accused Sohan absconded and he could be arrested only on 1st February, 1992. 7. In conclusion of investigation, charge sheet was filed against the appellant and the case was committed to the Court of Sessions, Howrah and thereafter transferred to the Court of learned Sessions Judge, Howrah for trial and disposal. The accused Sohan Thapa was charged under Section 302 of I.P.C on 7th January, 1993 for commission of murder by intentionally and knowingly causing the death of Shankar Chetri on 20th August, 1991. The accused pleaded not guilty and claimed to be tried. 8. Mr. Anjan Dutta, learned amicus curiae submits that the evidence on record does not implicate Sohan Thapa in the assault of victim. He submits that there is no evidence against the said appellant other than the purported eyewitness P.W 10 and evidence of P.W 10 against the appellant suffers from various contradictions and/or infirmities. Hence his conviction under Section 302 of the Indian Penal Code is unwarranted. 9. On the other hand, Mr. Maity, learned Counsel appearing for the state argues that the evidence of the eye-witness P.W 10 is clear, cogent and convincing. He deposed that the appellant abused the victim. The appellant forced the victim to get down from the cycle rickshaw and asked him to sign on a paper. As the victim refused, the appellant assaulted him with a knife resulting in injuries on the vital organs of his body causing his death. 10. He deposed that the appellant abused the victim. The appellant forced the victim to get down from the cycle rickshaw and asked him to sign on a paper. As the victim refused, the appellant assaulted him with a knife resulting in injuries on the vital organs of his body causing his death. 10. We have given our anxious consideration to the rival submissions of the learned Counsel appearing for the parties in the light of the evidence on record. From the evidence of different witnesses on record, namely, P.Ws 1, 2, 5 & 6, it will appear that on 20th August 1991 at around 9.00 O'clock a person was found lying in front of the Town Supply (Water Tank). That person was taken to the Eastern Railway Hospital at Liluah. The men who carried the body found that the victim had multiple injuries and was full of blood. At the Hospital the Emergency doctor examined the body and found a number of injuries. She declared the man dead. Thereafter the body was sent to the hospital dead house. The police was informed and the police officer (P.W.1) held inquest over the dead body. The body was thereafter sent to Mallick Fathak Morgue for post-mortem examination. P.Ws 5 & 6 stated that when they had been returning to their residence, they found a person was lying on the road in front of Town Supply. The names of the P.Ws 5 & 6 are Kingshuk Kumar Bose and Kajal Bhadra. Both of them carried the person to the hospital. P.W 5 stated that he observed that the said person had injuries all over his body and was bleeding. P.W 6 stated that he heard the person groaning. In his cross-examination, P.W 6 admitted that he found the said man had been bleeding all over his body and that he had stab wounds on his person. In fact P.W 6 admitted that a part of his trousers was stained with blood and according to him such blood had stained his trousers from the injuries on the said person. The evidence of P.Ws 5 & 6 thus clearly shows that in the night of 20th August, 1991 they found a person with multiple stab injuries on his body and full of blood lying on the ground in front of Town Supply. They carried the person to the Eastern Railway Hospital at Liluah. The evidence of P.Ws 5 & 6 thus clearly shows that in the night of 20th August, 1991 they found a person with multiple stab injuries on his body and full of blood lying on the ground in front of Town Supply. They carried the person to the Eastern Railway Hospital at Liluah. P.W 5, Kingshuk Kumar Bose admitted in his examination in chief that he disclosed his name and the name of the P.W 6 before the doctor at the hospital as the persons who had brought the injured man to the hospital. 11. P.W 2, Mrs. Rupa Mitra is a doctor who on 20th August, 1991 was on duty at the hospital. She stated that at around 9.20 P.M on that date Kingshuk Kumar Bose and Kajal Bhadra brought the body of an unknown male person to the hospital. She further stated that on examination she discovered that the man had died. She in her evidence gave detailed description of the injuries which she had found on the person of the victim. According to her, such injuries had been caused by a sharp cutting weapon like a knife or similar other thing. P.W 2 stated that she signed the inquest report of the deceased as well as the seizure list of the wearing apparels prepared by the investigating officer of the case. 12. The first Investigating Officer (P.W 1) stated that on receiving information he went to the hospital and contacted the lady medical officer Mrs. Mitra there. The Investigating Officer stated that the lady medical officer identified the body to him. He held inquest over the body in which along with others, the doctor P.W 2 signed on the seizure list of the wearing apparels of the victim. Thus it is clear that the person who had been lifted from the front of Town Supply and taken to the hospital was examined by the doctor (P.W 2) and she sent the body to the Hospital Morgue. Later she identified the body to the police officer who held inquest over the body and took other steps. 13. P.W 3, Arun Kumar Naskar stated that on the night of 20th August, 1991 he was on duty at the hospital and signed the seizure list prepared by the police. 14. P.W 4, Sri. Later she identified the body to the police officer who held inquest over the body and took other steps. 13. P.W 3, Arun Kumar Naskar stated that on the night of 20th August, 1991 he was on duty at the hospital and signed the seizure list prepared by the police. 14. P.W 4, Sri. Rana Chakraborty stated that while returning home from Bally at about 11-30 p.m. of 20th August, 1991 he found that a crowd had gathered in front of Liluah Railway Hospital. A police officer came forward and enquired him as to from where he had been coming. P.W 4 told him that he had been coming from Bally. The police officer further asked him whether he was a resident of Liluah and whether he could identify Sri. Kajal Bhadra and Kingshuk Bose. P.W.4 told the police officer that he (P.W.4) knew those two persons and took the police officer with him, first to the house of Kingshuk Bose at Lalmohan Mukherjee Street and from there went to Bijali Quarters and picked up Kajal Bhadra. 15. P.W 7, Mohan Bahadur Chetri, the elder brother of Shankar Chetri deposed that on 21st August, 1991 while going for work in the morning, some people informed him that the dead body of his brother, who used to stay with him, had been lying in the railway quarters. He went to the spot where the dead body of his brother had been lying but could not find anything and went to Bally Police Station. From the police station he was sent to the morgue and took delivery of the dead body of his brother. P.W 7 tried to ascertain how his brother has died but could not learn anything. P.W 7 though declared hostile by the prosecution in his cross-examination had identified the victim as his brother who used to live with him. P.W 7 denied stating before the police that about 10 or 12 years ago Shankar (the victim) married one Shanti who used to stay at Liluah Railway quarters being the eldest sister of Sohan (the accused) and his younger brother Shankar deserted his wife five or six years ago. He did not state that Shankar's wife Shanti thereafter lived with her father and that his brother-in-law Sohan used to bully him and threatened that unless he would sign a paper to release Shanti from marriage, he would be killed. He did not state that Shankar's wife Shanti thereafter lived with her father and that his brother-in-law Sohan used to bully him and threatened that unless he would sign a paper to release Shanti from marriage, he would be killed. Mohan Bahadur Chetri, P.W.7 denied of knowing any Ramesh but accepted summons issued in the name of Ramesh out of fear of police and signed on the summons. 16. P.W 8, Sri. Birjei Chetri stays at Bijali Quarter and works at Liluah Workshop for last nine years. On 20th August, 1991 at night he went to Liluah Hospital to see a person known to him and from there he was taken to Bally Police Station by the police, but denied that he had made any statement before the police, signed on any document or heard that any Nepali's boy had been murdered in the night of 20th August, 1991. 17. P.W 9, Sri. S. K. Gupta was the Judicial Magistrate, 6th Court, Howrah (Sadar). At the time of the incident, he recorded the statement under Section 164 of Cr. P. C. of one witness namely Ramesh Singh i.e. P.W 10 (Exhibit 6). Ramesh Singh (P.W 10) a rickshaw puller, claimed that on 20th August, 1991, he carried the victim in his rickshaw and the later went to his house at Arabinda Nagar. From Arabinda Nagar he took money and then again came to the market in his rickshaw and then he took liquor at the market and again went to Ghoshpara in his cycle rickshaw. He talked with a friend of his. Then Shankar and his friend were carried by Ramesh upto Pani Tanki, Liluah Railway Quarters. Shankar's friend got down near Pani Tanki and Sankar and Ramesh were drinking heavily on that night. Ramesh Singh further stated that suddenly Sohan Thapa stopped the cycle rickshaw and caused Shankar to get down and asked him to sign on a paper for releasing Sohan's sister Shanti. As Shankar declined, he struck Shankar thrice with the knife. Again P.W.10 said that the appellant caught the handle of the cycle-rickshaw, stabbed Shankar on his chest. On the fateful night Ramesh could not report the incident to the members of victim's family since he was quite drunk and went to sleep on the railway platform. Ramesh did not report the incident to the G.R.P or R.P.F posted at Liluah Railway Station. On the fateful night Ramesh could not report the incident to the members of victim's family since he was quite drunk and went to sleep on the railway platform. Ramesh did not report the incident to the G.R.P or R.P.F posted at Liluah Railway Station. P.W 10 in his cross-examination stated that he did not go to inform Shankar's elder brother Mohan Bahadur Chetri at his house and that he met him at the Railway Station where he had carried passengers and he told the news to him at the Railway Station and then with Shankar's elder brother he went to the police station but in his deposition Mohan Bahadur Chetri (P.W 7) has denied the same. The date on which Ramesh made statement before the learned Judicial Magistrate he went to the Police Station from where the home guard brought him to the Court. P.W 10 made statements before Judicial Magistrate under Section 164 of Cr. P. C. and also before the Court. 18. P.W 11, Dr. Suprakash Mukherjee examined the victim on 21st August, 1991. The results of the post mortem examination showed that the bladder of the deceased was empty but as P.W 10 had stated, if the victim would have consumed liquor within three hours before meeting the death it is expected that his stomach would contain liquor. In his opinion death was caused due to shock and haemorrhage by sharp pointed arms such as knife which is ante-mortem and homicidal in nature. 19. The names of the P.Ws 5 & 6 are Kingshuk Kumar Bose and Kajal Bhadra. Both of them carried the person to the hospital. The evidence of P.Ws 5 & 6 thus clearly shows that in the night of 20th August, 1991 they found a person with multiple stab injuries on his body and full of blood lying on the ground in front of Town Supply and they carried the person to the Eastern Railway Hospital at Liluah. P.W 5, Kingshuk Kumar Bose admitted in his examination in chief that he disclosed his name and the name of the P.W 6 before the doctor at the hospital as the persons who had brought the injured man to the hospital. P.W 5, Kingshuk Kumar Bose admitted in his examination in chief that he disclosed his name and the name of the P.W 6 before the doctor at the hospital as the persons who had brought the injured man to the hospital. The evidence of P.W 5 & 6 clearly shows that the unidentified man was injured but not dead and died only while he was carried to the hospital and though alive has not identified himself or named the appellant as the accused before P.W 5 and 6. 20. P.W 7, Mohan Bahadur Chetri, the elder brother of Shankar Chetri deposed that on 21st August, 1991 while going for work in the morning, some people informed him that the dead body of his brother, who used to stay with him, was lying in the railway quarters. He went to the spot where the dead body of his brother had been lying but could not find anything and went to Bally Police Station. From the police station he was sent to the morgue and took delivery of the dead body of his brother. P.W 7 tried to ascertain how his brother had died but could not learn anything. However, P.W 7 denied stating before the police that about 10 or 12 years ago Shankar (the victim) married one Shanti who used to stay at Liluah Railway quarters being the eldest sister of Sohan (the accused) and his younger brother Shankar deserted his wife five or six years ago. He did not state that Shankar's wife Shanti thereafter lived with her father and that his brother-in-law Sohan used to bully him and threatened that unless he would sign a paper to release Shanti from marriage, Shankar would be killed. Mohan Bahadur Chetri, P.W.7 denied of knowing any Ramesh the lone eye witness but accepted summons issued in the name of Ramesh out of fear of police and signed on the summons. 21. P.W 8, Sri. Birjei Chetri stayed at Bijali Quarter and worked at Liluah Workshop for nine years. Mohan Bahadur Chetri, P.W.7 denied of knowing any Ramesh the lone eye witness but accepted summons issued in the name of Ramesh out of fear of police and signed on the summons. 21. P.W 8, Sri. Birjei Chetri stayed at Bijali Quarter and worked at Liluah Workshop for nine years. On 20th August, 1991 at night he went to Liluah Hospital to see a person known to him and from there he was taken to Bally Police Station by the police, but denied that he had made any statement before the police, signed on any document forced upon him by the police or heard that any Nepali boy had been murdered in the night of 20th August, 1991. Ramesh Singh (P.W 10) a rickshaw puller, claimed that on 20th August, 1991, he carried the victim Shankar in his rickshaw and later went to his house at Arabinda Nagar. From Arabinda Nagar Shankar took money and then again came to the market in his rickshaw and then he took liquor at the market and again went to Ghoshpara in his cycle rickshaw. Then Shankar and his friend were carried by Ramesh upto Pani Tanki, Liluah Railway Quarters. Shankar's friend got down near Pani Tanki and Sankar and Ramesh were drinking heavily on that night. Ramesh Singh, further, stated that suddenly Sohan Thapa stopped the cycle rickshaw and caused Shankar to get down and asked him to sign on a paper for releasing Sohan's sister Shanti. As Shankar declined, he struck Shankar thrice with the knife. On the fateful night Ramesh could not report the incident to the members of victim's family since he was quite drunk and went to sleep on the railway platform. Ramesh did not report the incident to the G.R.P or R.P.F posted at Liluah Railway Station. P.W 10 in his cross-examination, stated that he did not go to inform Shankar's elder brother Mohan Bahadur Chetri at his house and that he met him at the Railway Station where he had carried passengers and he told the news to him at the Railway Station and then with Shankar's elder brother he went to the police station but in his deposition Mohan Bahadur Chetri (P.W 7) denied the same and he even denied that he knew anybody in the name of Ramesh. Dr. Dr. Suprakash Mukherjee (P.W 11) in his post mortem report had stated that the bladder of the deceased was empty and if the victim had consumed liquor within three hours before meeting the death, it is expected that his stomach would contain liquor whereas Ramesh (P.W 10) categorically stated that he and the victim Shankar were heavily drunk at the time when the accused struck the victim with knife. The date on which Ramesh made statement before the learned Judicial Magistrate he went to the Police Station from where the home guard brought him to the Court. No evidence has been led by the prosecution to show that the appellant was present at the time of occurrence except relying on one Ramesh. Furthermore no investigation has been done to verify the evidence of P.W 10 to establish the place and time of occurrence. The absence of such evidence on record and the evidence of P.W 7 and 8 denying knowing Ramesh, Sohan Thapa or his elder sister disregards any motive of the appellant to attack the victim with knife. I feel that in the absence of any direct evidence, lack of motive and the evidence of P.W 10 not corroborated by any other witness, I am unable to rely such piece of evidence to implicate the appellant in the alleged crime. I am afraid that conviction of the appellant under Section 302 cannot be sustained. 22. In view of the aforesaid discussion, I set aside the conviction and sentence imposed on the appellant. 23. The appellant shall be released from custody upon executing a bond to the satisfaction of the learned Chief Judicial Magistrate, Howrah for a period of six months in terms of Section 437A of the Code of Criminal Procedure if he was not wanted any other case. 24. I record my appreciation for the able assistance rendered by Mr. Anjan Dutta as amicus curie in disposing of the appeal. 25. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 26. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. Joymalya Bagchi, J. I Agree.