JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. Appellant is aggrieved by the Judgment of conviction dated 28th August 2007 and Order of sentence dated 30th August 2007, passed by the learned 1 st Additional Sessions Judge, Deoghar, in S.T. No.141 of 2006, whereby, the sole appellant has been found guilty and convicted for the offences under Sections 302, 201/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Sections 302/34 of the Indian Penal Code, and S.I. for five years and fine of Rs.5000/- for the offence under Sections 201/34 of the Indian Penal Code. Both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of Manoj Kumar Sah, the brother of the deceased Santosh Kumar Sah, recorded on 27.8.2005 at about 6:30 AM near a rivulet in village Faridah, P.S. Sarwan, District Deoghar. In the fardbeyan, it is stated that on the previous day, i.e., on 26.8.2005 at about 9:00 AM, the deceased Santosh Kumar had gone by bus to Deoghar for making some purchases. When he did not return back even till evening, he asked his father, whereupon, his father told him that he might return back by night. Even in the night, his younger brother did not return back, and in the morning at about 5:30 AM, he was informed on telephone that one dead body was found, from which a receipt was recovered, in which, name of Kedar Sah (father of the informant) is mentioned. He was asked to come to the Police Station to identify the dead body. Thereafter, he went there along with villagers and his younger brother Uttam Kumar Sah and from the Police Station, they went to the rivulet, where he found the dead body of his younger brother Santosh Kumar Sah. In the fardbeyan, no one was named as accused, even on suspicion. On the basis of the fardbeyan, Sarwana P.S. Case No.109 of 2005, corresponding to G.R. No.700 of 2005, was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, against unknown, and investigation was taken up. In the fardbeyan, no one was named as accused, even on suspicion. On the basis of the fardbeyan, Sarwana P.S. Case No.109 of 2005, corresponding to G.R. No.700 of 2005, was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, against unknown, and investigation was taken up. After investigation, the police submitted the charge-sheet against the present accused Chandan Laha and one another accused Munni Lal Sah, who appears to be absconding. 4. After commitment of the case to the Court of Session, charge was framed against the accused Chandan Laha for the offence under Sections 302/34 and 201/34 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. 5. In course of trial, eighteen witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on dead body of the deceased. 6. Pw-6 Manoj Kumar Sah is the informant in the case and the brother of the deceased. This witness has stated that the occurrence had taken place on 26.08.2005 on a Friday. His brother had gone to take a bus for going to Deoghar at about 9:00 AM in the morning, for making some purchases. He had thirty to forty thousand rupees with him. He did not return back till 6:00 PM in the evening, whereupon, this witness asked his father that Santosh had not returned back. His father told him that he might return back in the night. Even in the night, Santosh did not return, and in the morning at about 5:30 AM, someone came from Sariahat Police Station informing that a dead body had been found under Sarwan Police Station and from the dead body, one receipt had been recovered containing the name of the father of the informant. He has identified the said receipt, which was marked Ext. 5. Upon getting this information, this witness along with his brother Uttam Kumar Sah and other persons of his village went to Sarwan and found the dead body, which he identified to be that of his brother Santosh Kumar Sah. There were injuries on the dead body and the neck was also slit. He has identified the accused Chandan Laha in the Court. There were injuries on the dead body and the neck was also slit. He has identified the accused Chandan Laha in the Court. This witness has further stated that the accused Chandan Laha had taken loan of thirty to forty thousand from the deceased. This witness has also stated that after identifying the dead body, he had given his fardbeyan to the police, which was read over to him and he had put his signature, which he has identified and the same was marked Ext. 6. In his cross-examination by the defence, this witness has stated that the accused had business relationship with the deceased and he had taken loan of rupees thirty to forty thousand from the deceased. He has also stated that they are searching the paper relating to the said loan and, if the paper is found, it may be produced in the Court. He has denied the suggestion to have falsely stated that the accused had taken loan of from the deceased. 7. Pw-4 Deepak Kumar Sah is a co-villager, and he has stated that on 26.8.2005, he was going to Deoghar, and he went to the house of Santosh Sah to ask, whether he needed anything from Deoghar, whereupon, Santosh Sah informed him that he shall be going along with Chandan Laha and Munni Lal to the in-laws' place of Chandan Laha. On 27.8.2005, the dead body of the deceased was found. Similarly, PW-8 Mukesh Nandan has stated that on 26.8.2005, Santosh Kumar Sah came to his shop and informed him that he along with Chandan and Munni Lal were going to Chandan's in-laws place at Sarwan, and on next day, the dead body of the deceased was found. 8. Pw-13 is Kedar Sah, the father of the deceased. This witness has stated that the deceased was his son. The occurrence had taken place on 26.8.2005. At about 9:00 AM Chandan Laha and Munni Lal came to his house and they informed that they had seen an old tempo at Sarwan, for Rs.50,000/-, whereupon, this witness told them to return back thirty thousand rupees first, which he had taken. His son Santosh went along with Munni Lal and Chandan Laha and he was having rupees fifty thousand cash with him. Thereafter his son did not return back. His son Santosh went along with Munni Lal and Chandan Laha and he was having rupees fifty thousand cash with him. Thereafter his son did not return back. Next morning, they were informed by the police that one dead body was found, from which, a receipt was recovered and this witness has also identified that receipt, which was earlier marked Ext. 5. He has stated that his elder son along with other persons had gone to the place of occurrence and had identified the dead body and from near the dead body, the slipper of the accused Chandan Laha was also recovered. He has identified the accused Chandan Laha in the Court. In his cross-examination, this witness has stated that he had no knowledge, whether that slipper was put to TIP or not. He has denied the suggestion to have given false evidence. 9. Pw-12 Uttam Kumar Sah is another brother of the deceased, who has also stated that his brother Santosh Kumar Sah had gone to Deoghar from house at about 9:00 to 10:00 AM in the morning for making purchases and he was having rupees thirty to forty thousand with him. He did not return back, and on the next day at about 5:00 to 6:00 AM, they were informed by Sariya Hat police that a person was murdered and a receipt was found from him containing the name of his father. Thereafter, he along with other persons went and identified the dead body. This witness has also stated that the accused Chandan Laha had taken a loan of rupees thirty thousand from his brother. He has identified the accused in the Court. He has also stated that from near the dead body, slippers were recovered, out of which, one slipper was of his brother and the other slipper was of Chandan Laha. In his cross-examination, this witness stated that the recovered slippers were not available in the Court and he did not remember as to when the accused had taken the loan from the deceased. He has also stated that he had no knowledge that any paper was prepared for that or not. He has denied the suggestion to have given the false evidence. 10. Pw-10 Manish Kumar Singh has stated that the occurrence had taken place on 26.8.2005. He has also stated that he had no knowledge that any paper was prepared for that or not. He has denied the suggestion to have given the false evidence. 10. Pw-10 Manish Kumar Singh has stated that the occurrence had taken place on 26.8.2005. On that day, he had met Santosh Kumar at Sariya Hat bus stand at about 9:00 to 9:30 PM. Chandan Laha and Munni Lal Singh were also along with Santosh Kumar Sah and Santosh Kumar Sah informed him that he was going to Deoghar. On the next day, the dead body of the deceased was found. He had gone to the place of occurrence and had also identified the dead body. This witness has also stated that Chandan Laha had taken about thirty thousand rupees loan from Santosh Kumar and on that day also Santosh Kumar Sah was going for marketing at Deoghar and he had a lot of cash with him. He has stated that the fardbeyan of the informant was recorded in his presence and he had also put his signature on the same, which he has identified and the same was marked Ext. 7. He has identified the accused in the Court. In his cross-examination, this witness has stated that no transaction of loan had taken place in his presence, rather he was informed about this fact by the elder brother of the deceased. He has stated in his cross-examination that he had given the statement before the police that at the bus stand, he had seen Santosh along with Chandan Laha and Munni Lal Sah. 11. Pw-2 Rajesh Kumar and PW-3 Ram Gopal Pandey have also deposed that on 26.8.2005 at 10:00 AM in the morning, they had seen Santosh Kumar, Chandan Laha and Munni Lal boarding a bus for Deoghar. They have also stated that their statements were recorded under Section 164 of the Cr.P.C., and they have identified their signatures, which were marked Exts. 3 and 4 respectively. 12. Pw-5 Md. Sarfuddin, PW-7 Goutam Kumar Sah, PW-9 Sanjay Thakur, PW-11 Bikul Kumar Das and PW-15 Surendar Bhagat have deposed to the effect that on 26.8.2005, at about 8:00 PM in the night, they were at Saraiya Hat at a shop, when Chandan Laha came there. He was wearing a full pant and a baniyan and was having a towel. On his body, and on his cloths, there were blood stains. He was wearing a full pant and a baniyan and was having a towel. On his body, and on his cloths, there were blood stains. Upon being asked, he informed them that he had met an accident by a tempo, in which he was injured. He was also having an injury on his hand. When they asked about his slippers and shirt, he informed that they were left at the place of accident itself. Thereafter, they got him treated by a local doctor and on the next day morning, they heard that Santosh Sah was murdered and his dead body was recovered near a rivulet. These witnesses have stated that thereafter they inquired and found that no accident had taken place, as informed by the accused. They have identified the accused in the Court. There is nothing of much importance in their cross-examination, except that PW-5 Md. Sarfiuddin has admitted in his cross-examination that the distance between Sarwan and Sariahat (i.e., the place where the dead body was recovered and place where they had met the accused) was about 65 to 70 KMs. 13. Pw-1 Gopal Chandra Jha and PW-14 Ganesh Verma are only the witnesses to the inquest report and seizure list, and they have identified their signatures on both these documents, which were marked Ext. 1 series and 2 series respectively. 14. Pw-16 Ranjeet Kumar is a Chaukidar, who had brought the material exhibits to the Court and he has identified the letter, through which, the material exhibit were sent to the Court, which was marked Ext. 8. 15. Pw-17 is Dr. Rameshwar Mahto, who had conducted the post-mortem examination on the dead body of the deceased on 27.08.2005 and had found the following ante-mortem injuries on the dead body of the deceased:- 1. Incised wound in the middle of neck transversely placed at the level of hyoid bone, size 6" x 1/2" x up to the servical vertibra x deep cutting all the major vessels of the neck and treachea and phyrinx. 2. Incised wound over the left cheek 1" x "bone deep. 3. Incised wound over middle of right palm 2" x "bone deep. 4. Two incised wounds side by side over the right side of chest; each 2" x 2" x throsaic deep. 5. Incised punctured wound over umbilicus 2" x "abdominal cavity deep, through the wound portion of Intestine was coming out. 3. Incised wound over middle of right palm 2" x "bone deep. 4. Two incised wounds side by side over the right side of chest; each 2" x 2" x throsaic deep. 5. Incised punctured wound over umbilicus 2" x "abdominal cavity deep, through the wound portion of Intestine was coming out. On dissection:- Skull :- Brain and menings intact and pale. Neck :- As mentioned above. Chest :- chest cavity was full of blood. Right lung punctured and pale. Left lung pale. 7th and 8th ribs of right side were cut. All chambers of heart were empty. Abdomen :- Abdominal cavity was full of blood. Stomach contained undigested food material about 200 ml. Liver, spleen and kidney were pale. Intestine contained faecal matter. Lower Intestine at the level of umbilicus was punctured. Urinary bladder empty. This witness has stated that the death was caused due to hemorrhage and shock as result of the above noted ante-mortem injuries caused by sharp cutting weapon. He has indentified the post-mortem report to be in his pen and signature, which was marked Ext. 9. 16. Pw-18 is Suresh Prasad Yadav, who is the I.O. of the case. This witness has stated that on 27.08.2005, he was posted at Sarwan Police Station and at about 4:00 to 5:00 AM in the morning, he got the rumour that at a distance of about one kilometer from Sarwan, a dead body was found in a rivulet. He entered the information as sanha entry and proceeded for the place of occurrence. He recovered a paper from the pocket of the dead body, in which, the name of Kedar Sah was there. He has identified the same in the Court, which was earlier marked Ext. 5, stating that it is the same document. He has stated that the brother of the deceased came there and he identified the dead body. His fardbeyan was recorded and he has proved the fardbeyan. He prepared the inquest report, which also he proved, and the same was marked Ext. 10. He has given the details of the place of occurrence, where some blood stains were also found on the sand, and there was mark of violence on the sand. He has stated that he recovered some slippers from the place of occurrence and prepared the seizure list, which he proved and the same was marked Ext. 11. 10. He has given the details of the place of occurrence, where some blood stains were also found on the sand, and there was mark of violence on the sand. He has stated that he recovered some slippers from the place of occurrence and prepared the seizure list, which he proved and the same was marked Ext. 11. He has produced those slippers in the Court, which were one pair of plastic slipper, which was marked material Ext. I, one another plastic slipper was also produced, which was marked material Ext. II and third plastic slipper was also produced, which was marked material Ext. III. He has stated that he recorded the statements of the witnesses. He received the post-mortem report and submitted the charge-sheet. He has proved the formal FIR and the same was marked Ext. 11. In his cross-examination, this witness has stated that he had not got the T.I. parade of the recovered slippers conducted. He has also stated that the witness Manish Kumar Singh had not stated before him that he had seen Munni Lal and Chandan Laha together with Santosh. 17. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein, the accused has denied the evidence against him. On the basis of the evidence on record, the accused has been convicted and sentenced by the Trial Court below as aforesaid. 18. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, there is no eyewitness to the occurrence and there is only circumstantial evidence. One of the circumstances is that some witnesses have stated that one slipper of the accused was also found near the dead body. However, the fact remains that slipper was not identified by any witness in the Court, nor it was put to TIP. Learned counsel further pointed out that the only other circumstantial evidence against the appellant is that he was last seen along with the deceased, which fact is deposed by PW-10 Manish Kumar Singh, PW-2 Rajesh Kumar, PW-3 Ram Gopal Pandey and PW-13 is Kedar Sah. Learned counsel further pointed out that the only other circumstantial evidence against the appellant is that he was last seen along with the deceased, which fact is deposed by PW-10 Manish Kumar Singh, PW-2 Rajesh Kumar, PW-3 Ram Gopal Pandey and PW-13 is Kedar Sah. Learned counsel submitted that the chain of circumstances is not at all complete so as to point out only towards the guilt of the accused and in the facts of this case, the accused appellant was entitled at least to the benefits of doubt. 19. Learned counsel for the State on the other hand has opposed the prayer and has submitted that admittedly, this is a case of circumstantial evidence only, as there is no eyewitness to the occurrence. Learned counsel submitted that the circumstance that the appellant was last seen with the deceased going to Deoghar together, the circumstance that the appellant had taken loan from the deceased and the circumstance that the deceased was having sufficient money while he was going with the appellant, coupled with the fact that thereafter the dead body of the deceased was found, and the appellant was seen with blood stained cloths by PW-5 Md. Sarfuddin, PW-7 Gautam Kumar Sah, PW-9 Sanjay Thakur, PW-11 Bipul Kumar Das and PW-15 Surendar Bhagat, are sufficient circumstances to rope in the accused for the offence under Section 302 of the IPC. Learned counsel accordingly, submitted that the prosecution has been fully able to bring home charge against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence. 20. Having heard learned counsels for both the sides and upon going through the record, we find that there is no eyewitness to the occurrence. There is only circumstantial evidence against the accused. The circumstances, which are against the appellant are as follows:- (a) This accused was last seen going with the deceased on a bus. (b) The accused had taken loan of rupees thirty thousand from the deceased. (c) The deceased was having sufficient money while it was going with this accused. (d) The accused was seen by the witnesses at Saraiya Hat in the night at about 8:00 PM with the blood stained cloths, and (e) Out of the slippers found near the dead body, one is said to be the slipper of the accused. (c) The deceased was having sufficient money while it was going with this accused. (d) The accused was seen by the witnesses at Saraiya Hat in the night at about 8:00 PM with the blood stained cloths, and (e) Out of the slippers found near the dead body, one is said to be the slipper of the accused. So far as finding of the slipper of the accused is concerned, we find that no witness has identified the accused's slipper in the Court. The I.O. PW-18 Suresh Prasad Yadav has admitted in his cross-examination that the said slipper was never put on TIP. As such, this circumstance is not at all available against the accused. So far as the circumstance that the appellant was seen by PW-5 Md. Sarfuddin, PW-7 Gautam Kumar Sah, PW-9 Sanjay Thakur, PW-11 Bipul Kumar Das and PW-15 Surendar Bhagat, wearing blood stained cloths on the date of the occurrence, the fact remains that the distance between Sarwan, where the dead body was found, and Saraiya Hat, where these witnesses had seen the accused, appears to be a long distance and PW-5 Md. Sarfuddin has admitted in his cross-examination that this distance is about 65 to 70 KMs. Though, this distance, given by PW-5 may not be exactly correct, but certainly it depicts that the distance is a long distance. Indeed the blood stained cloths of the accused were never recovered and seized by the police. Hence this circumstance also, cannot be taken against the accused. The other circumstances, relied upon by the prosecution against the appellant, are that the appellant had taken loan of rupees thirty thousand from the deceased and that he was last seen with the deceased going on a public transport vehicle to Deoghar. The I.O. has admitted in his cross-examination that PW-10 Manish Kumar Singh had not stated before him that he had seen Munni Lal and Chandan Laha together with Santosh. This apart, even though, PW-13 Kedar Sah, the father of the deceased, has stated that on the date of occurrence this accused had visited his house, and from his house, the deceased had gone along with this accused, but this fact is neither supported by the informant PW-6 Manoj Kumar Sah, nor by PW-12 Uttam Kumar Sah, who are the own brothers of the deceased. Even otherwise, in our considered view, only on the basis of the evidence of last seen with the deceased, and the oral evidence that the accused had taken loan of rupees thirty thousand from the deceased, and the deceased was having sufficient money while he was going with this accused, the conviction and sentence of the appellant for the offences under Sections 302 and 201 of the Indian Penal Code, cannot be sustained in the eyes of law, and in the facts of this case, the accused appellant was entitled to the benefits of doubt. 21. For the foregoing reasons, the impugned Judgment of conviction dated 28th August 2007 and Order of sentence dated 30th August 2007, passed by the learned 1st Additional Sessions Judge, Deoghar, in S.T. No.141 of 2006, convicting and sentencing the appellant for the offences under Sections 302, 201/34 of the Indian Penal Code, are hereby, set-aside. The appellant Chandan Laha @ Chandan Kumar Laha is given the benefits of doubt and he is acquitted of the charges. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 22. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.